by Samantha Crane
THIS ARTICLE ORIGINALLY APPEARED at THE FEDERALIST SOCIETY
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.
Time’s up. Schools throughout the country were fighting the calendar after a recent Dear Colleague Letter issued by the Department of Education gave schools two weeks to eradicate any discriminatory practices at their institutions, including Diversity, Equity, and Inclusion (DEI) practices. That letter was followed up by a new “End DEI” portal where members of the public can submit reports to the Department of any “illegal discriminatory practices” in schools. The letter and portal together offer a clear message: discrimination on the basis of race, color, or national origin is illegal and will not be tolerated by the Department.
Craig Trainor, the Acting Assistant Secretary for Civil Rights at the Department of Education, explained in the letter, “All students are entitled to a school environment free from discrimination. The Department is committed to ensuring those principles are a reality.”
The February 14 letter reminded schools and universities that if they receive any federal assistance from the Department, they are obligated to comply with nondiscrimination laws, such as Title VI of the 1964 Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Schools that failed to meet their obligations under these laws within the two-week deadline would risk losing federal funding.
In recent years, K-12 schools, universities, and graduate schools have increasingly adopted programs that employ race-based and other illegal preferences. Up until last year, the Wisconsin State Bar hosted a diversity clerkship program that was only open to law students from certain diverse backgrounds, defined by race, gender, and sexual orientation, among other traits. After a lawsuit brought by the Wisconsin Institute for Law & Liberty, the Wisconsin State Bar changed the program to be open to any law student in Wisconsin regardless of race.
The letter warned against the continued use of any race-based preferences in admissions, financial aid, hiring, and training, invoking the Supreme Court’s decision in SFFA v. Harvard that such preferences violate the Constitution and federal law. It advised schools to ensure their policies follow civil rights law, steer clear of doing indirectly what they cannot do directly, and stop using third parties to bypass rules against race-based actions.
The letter was preceded by—and is one facet of implementing—President Trump’s Day One Executive Order 14151, titled “Ending Radical And Wasteful Government DEI Programs And Preferencing.” That executive order is aimed at both ending DEI programs and preferences and holding schools to a broad interpretation of the Supreme Court’s decision in SFFA.
In response to the Dear Colleague Letter and the executive order, the American Bar Association recently suspended enforcement of its Rule 206, a rule that previously asked law schools to consider race in their admissions and employment processes to ensure campus diversity. The Air Force Academy began taking apart its DEI offices within days of President Trump’s inauguration. Other schools, such as Wisconsin Law School, are rebranding DEI offices and job descriptions by, among other things, changing job titles to be about “Student Success & Inclusive Excellence” rather than DEI in hopes of demonstrating compliance with the new policies.
The deadline set out in the letter passed at the end of February. Since then, the White House has canceled $400 million in grants and contracts with Columbia University as a result of its failure to protect Jewish students from harassment. And at the beginning of March, the University of Virginia’s Board of Visitors passed a unanimous resolution to close its DEI office to comply with the recent guidance.
The Department of Education has offered further direction on the issues discussed in the Dear Colleague Letter in a question and answer document. The Q&A confirms that the Department does not intend to infringe on schools’ and teachers’ First Amendment free speech rights, and that it does not plan to dictate school curriculums, which would violate federal law.
After the Biden administration’s Department of Education spent four years and nearly a billion dollars backing DEI efforts, this letter marks a shift for the future of American education, pointing toward policies that prioritize equal opportunity for all students rather than equity of outcome.
