School district leaders should consult with their lawyers over new guidance from the U.S. Department of Education that threatens the loss of federal funding to schools that don’t end essentially any sort of race-based programming, education experts say.
The sweeping “dear colleague” letter from the head of the Education Department’s office for civil rights, sent to K-12 schools and universities that receive federal dollars on Feb. 14, is the latest effort from President Donald Trump’s administration to weed out what he labels diversity, equity, and inclusion, using the threat of cutting funds as a way to exert the federal government’s muscle on K-12 schools. The letter relies on the U.S. Supreme Court’s decision in 2023 that struck down affirmative action in college admissions, with the department arguing the court’s ruling “applies more broadly.”
The civil rights office directs districts and colleges to cease using “race as a factor in admissions, financial aid, hiring, training, and other institutional programming.” It gives districts until March 1 before it says it will open investigations into schools and universities that don’t comply with the order. It comes on the heels of executive orders from President Trump that also have sought to curb DEI.
Though the letter doesn’t change the underlying laws the civil rights office is charged with enforcing, it does spell out the administration’s interpretation of those laws, and what the office for civil rights’ enforcement priorities will be, said John Borkowski, a lawyer with Husch Blackwell in Chicago who represents and works with school districts.
“I think it’s important for districts to talk to their counsel and review policies and programs in potentially affected areas to make sure that they’re comfortable that they’re legally compliant,” Borkowski said.
It’s something that will have to be handled district by district, Borkowski said. Depending on where a district is located, federal courts have differed in their interpretations of federal law, and different state laws also apply.
“All of those things need to be balanced, and this [guidance] is one of the things that they’ll have to take into account,” he said. “But it’s certainly not the only thing.”
The Feb. 14 guidance is another example of how Trump’s Education Department is using its office for civil rights as a tool to carry out the president’s social agenda. In recent weeks, the civil rights office has dismissed complaints involving district book challenges and launched investigations into athletic associations that have pushed back on Trump’s executive order barring transgender girls from girls’ sports teams. At the same time, much of the office’s day-to-day work has stopped.
The “dear colleague” letter is an unmistakable sign of a DEI crackdown in schools
The letter is a “vast and unjustified expansion” of the Supreme Court’s affirmative action decision, said Sumayya Saleh, associate director of educational opportunities project for the Lawyers’ Committee for Civil Rights Under Law.
“The letter is simply wrong that school programs advancing diversity, equity, and inclusion are presumptively illegal,” she said. “While the decision that this letter relies on was a blow to affirmative action at higher education institutions, its ruling is really quite limited and still allows for institutions to use other lawful means to advance diversity and equity, whether at the college level and certainly in the K-12 level, which that case is not even about.”
William Trachman, who served as a deputy assistant secretary in the office for civil rights in the first Trump administration and is part of the Mountain States Legal Foundation, a conservative legal advocacy group, said the letter was a “shot across the bow” for districts that have embraced DEI.
Trachman said that the first administration spent time rolling back Obama administration efforts, but this administration can make more progress.
The new guidance is “also making sure schools know there’s a new sheriff in town, and there’s going to be a robust enforcement effort on these issues,” he said.
But with the scope of the letter being quite broad, Saleh said, the “trickle-down effect is potentially catastrophic.”
“I think it’s important for school districts not to recoil or engage in self censorship, so to speak, just because this guidance has been issued,” she said. “I think it’s important for them to examine and explore what the law actually holds, not how the current administration is interpreting the law, and then consider within the bounds of what continues to be lawful, what efforts can they still take to pursue their interests of ensuring diversity and equal access on their campuses?”
Cutting off funds to school districts is a multi-step process
It’s not possible for the executive branch to unilaterally pull funding. The office for civil rights must first investigate allegations, find a violation, and also find that the school is refusing to address it. The department would then recommend a funding termination, and there would be a waiting period during which Congress could override the department’s attempt to terminate funds.
Through case law and regulation, the department can’t cut all funding to a school, either, to keep from harming innocent students and staff, and to prevent vindictive or punitive use of OCR investigations. The funding termination—which is rare—would have to target the particular program where OCR has found a violation.
School districts can also appeal funding termination decisions.
Sasha Pudelski, the director of advocacy for AASA, The School Superintendents Association, said that districts should continue to focus on doing what’s best for their students. If they feel “compelled to try and proactively avoid OCR challenges” they could focus on examining programs or activities that explicitly discuss race. But she emphasized that the guidance hasn’t changed the law.
“In light of President Trump’s efforts to diminish OCR enforcement and the legal arguments underpinning the guidance that may be challenged, districts should continue to pay attention to what’s happening at the federal level and consult with attorneys about what they need to do in response to it,” she said.
The implications of Trump’s DEI crackdown are still unclear
Though the administration has taken a harsh stance on DEI, the practical implications of its mandates have been unclear for educators.
During her U.S. Senate confirmation hearing last week, presumptive Secretary of Education Linda McMahon declined to offer specifics for how districts could interpret Trump’s executive order on “radical indoctrination,” which called on federal officials to develop plans for withholding money from K-12 schools that engage in what he calls “discriminatory equity ideology” and “gender ideology.” McMahon didn’t answer whether Black history could be taught, or whether schools could hold affinity clubs for students with shared backgrounds.
Meanwhile, more than 100 employees at the Education Department have been placed on leave or terminated due to tenuous ties to DEI work. Many had attended a diversity training held during Trump’s first term.
Elon Musk’s unofficial agency, the Department of Government Efficiency, has also slashed hundreds of millions of dollars in contracts for teacher training, claiming that they promoted DEI, anti-racism, and the examination of white privilege.
The letter from OCR, and the broader efforts from the executive branch to diminish DEI, has caused some to fear that districts will comply proactively and cut programming.
Royel Johnson, an associate professor of education at the University of Southern California, fears that the letter would scare districts to “abandon the work that so many know is important,” saying DEI is part of the puzzle to make students feel connected and safe in their schools, which has implications for student success, retention, and graduation. He hoped district leaders would “lean in” to their legal teams to understand the difference between law, guidance, and mere recommendations.
“This is much broader than ideology at this point,” Johnson continued. “This cuts across so many issues that I think we all care about, and I hope people will pay close attention to what’s happening and use every lever available to them to push back.”
2025-02-18 23:29:34
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