School programs, classes, and events focused on particular cultures don’t automatically run afoul of federal civil rights law, the Trump administration said over the weekend. But schools must ensure those programs are open to all students and don’t make students of a particular racial group feel guilt for their ancestors’ actions.
That’s one takeaway from a new, FAQ document the U.S. Department of Education released March 1, two weeks after the agency’s office for civil rights issued a sweeping directive instructing schools to cease all race-based programming or risk losing federal funds.
That Feb. 14 directive brought widespread confusion about whether schools and colleges could continue initiatives such as clubs celebrating students of a particular race or ethnicity or even teach Black history.
In addition, during her Feb. 13 Senate confirmation hearing, Education Secretary nominee Linda McMahon declined to say whether a Black history course or racial-affinity club would be allowed under a January executive order from President Donald Trump cracking down on schools’ diversity, equity, and inclusion programs.
Legal experts have described the Feb. 14 “dear colleague” letter—which the agency described as guidance to schools—as vague, overly broad, and virtually impossible for schools to follow. They’ve also raised concerns that it has had a chilling effect, prompting schools and colleges preemptively to drop efforts to ensure equal opportunity for all students and cultivate a welcoming environment.
The letter has already drawn a lawsuit claiming it was unconstitutionally vague and misrepresented federal law. The department’s office for civil rights gave schools two weeks from the date of the letter to comply.
The civil rights office followed up with the nine-page FAQ document on Saturday, just after that two-week mark. The initial letter hadn’t defined DEI programs, nor spelled out the kinds of programs that could run afoul of Title VI of the Civil Rights Act, which bars race-based discriminated in federally funded programs.
The new document still doesn’t define DEI, but clarifies that not all race-based programs automatically violate Title VI.
“[S]chools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race,” the document reads. “Nor would educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate or recognize historical events and contributions, and promote awareness, so long as they do not engage in racial exclusion or discrimination.”
The document also notes that federal law bars the federal Education Department from controlling schools’ curricula, which are decided at the state and local levels.
Still, the FAQs continue the Trump administration’s hard line against what it labels DEI as well as social-emotional learning and culturally responsive teaching—practices that have long attracted conservative ire.
“Many schools have advanced discriminatory policies and practices under the banner of ‘DEI’ initiatives,” the document reads, without specifying what those policies and practices are. “Other schools have sought to veil discriminatory policies with terms like ‘social-emotional learning’ or ‘culturally responsive’ teaching.” (Social-emotional learning teaches students strategies to manage their emotions, make responsible decisions, and build life skills; culturally responsive teaching incorporates students’ cultural identities and experiences into classroom instruction to make it more relevant.)
Plus, the document says, programs don’t have to be labeled DEI to violate the 1964 civil rights law.
“Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races,” the document reads.
Experts predict the “dear colleague” letter will run into legal trouble
During a Feb. 28 panel discussion hosted by the Brookings Institution, before the Trump administration’s FAQ document was posted, legal experts warned schools against “overcorrecting” to comply with the guidance, noting that it is not legally binding and may even contradict existing laws.
“There’s other laws on the other side, and policies you don’t want to go so far as to try to comply with this and run afoul of actual law,” said Robert Kim, executive director of the Education Law Center. “Schools need to temper their overreaction and counsel needs to be grounded in what the actual law requires.”
The panelists said they expect the guidance to run into various legal challenges from districts, advocates, and education organizations.
The guidance “gives notice of how the agency is interpreting existing law,” said Kimberly Robinson, a professor of law and public affairs at the University of Virginia.
But ultimately, dear colleague letters are not binding and cannot contradict the law, which has established that “efforts to create a more diverse, equitable, inclusive district are lawful when they help to challenge and disrupt stereotypes and result in a learning environment where all students are valued and can thrive,” she said.
Administrators who aren’t legal experts and do not fully understand Title VI could feel fearful because of the new guidance and begin cutting programs that are legally permissible in an attempt to comply with what they think the guidance demands, said Liliana Garces, a professor of educational leadership and policy at the University of Texas at Austin.
“Even with all of that legal understanding, this letter can have that very practical effect that it instills fear, so educators abandon policies that remain lawful,” she said. “ … Even if the guidance is struck down in the courts, it will still have an effect if educators change policies out of fear.”
Jackie Wernz, a former civil rights attorney at the Education Department’s office for civil rights, added that the guidance and its implications for schools are far from clear cut and said districts have options to “do the kinds of work they think is important for their students, whatever that may be.”
The Education Department is interpreting a Supreme Court decision on college admissions
The Feb. 14 “dear colleague” letter relies on the U.S. Supreme Court’s decision in 2023 that struck down affirmative action in college admissions, arguing that the court’s ruling “applies more broadly.” The FAQ document sticks to that broad interpretation.
But a Feb. 25 lawsuit led by the American Federation of Teachers challenging the original DEI directive disputes it.
“This letter radically upends and rewrites otherwise well-established jurisprudence,” the lawsuit reads. “No federal law prevents teaching about race and race-related topics, and the Supreme Court has not banned efforts to advance diversity, equity, and inclusion in education.”
The AFT, along with its Maryland affiliate and the American Sociological Association, also argued in their lawsuit that the “dear colleague” letter was “too vague to give clear notice of what conduct is supposedly prohibited.”
Rather than clarify matters, the FAQ document “has just made things murkier,” AFT President Randi Weingarten said in a statement.
“It seems like vagueness, confusion, and chaos is the point,” she said. “What happened to this administration’s supposed allegiance to free speech and to eschewing censorship?”
The original letter from mid-February had warned schools that it would “take appropriate measures to assess compliance,” but didn’t specify what measures it would take.
The follow-up document clarifies that it will use the office for civil rights’ usual process of pursuing a voluntary resolution agreement with districts found to have violated a civil rights law.
The office can withhold federal funds from a school district or university, but it seldom does. Cutting off funds requires multiple steps, which include opportunities for a district to appeal and for Congress to intervene. The last time OCR cut off funds to a school district was in 1990, and that stemmed from a complaint it began investigating six years earlier.
2025-03-03 18:56:57
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