Office for Civil Rights Issues “Dear Colleague” Letter Aimed At Curbing Race-Based Decisions and Benefits At Federally Funded Colleges and Universities

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On Friday, February 14, 2025, the U.S. Department of Education’s Office for Civil Rights (“OCR”) issued a “Dear Colleague” letter advising federally funded schools that it considers any decisions or benefits based on race, color, or national origin to be a violation of Title VI of the Civil Rights Act of 1964 (“Title VI”). The Dear Colleague letter further advises that within the next 14 days OCR “intends to take appropriate measures to assess compliance with the [law] based on the understanding embodied in this letter.”

Background for OCR’s Dear Colleague Letter

Dear Colleague letters are published by OCR and other executive agencies to communicate guidance regarding their interpretation of federal laws and regulations they are charged with enforcing. Thus, while Dear Colleague letters are not legally enforceable, they can provide helpful insight to employers and the legal community on how the current Administration views the law and intends to enforce it.

OCR’s February 14 Dear Colleague letter relies on the regulatory framework provided under Title VI and the 2023 U.S. Supreme Court decision Students for Fair Admissions v. Harvard (“SFFA”). As we discussed in a prior alert, in SFFA the Supreme Court held that the use of race in the college’s admissions programs violated Title VI and the U.S. Constitution because those programs did not pass the “strict scrutiny” test. Applying that constitutional test, the Court held that the college’s race-based admissions programs were not narrowly tailored to meet its interest in ending historical racism at the college.

What Does the Dear Colleague Letter Say About Race-Based Decisions and Benefits at Federally Funded Schools?

According to OCR’s February 14 Dear Colleague letter, although SFFA “addressed admissions decisions, the Supreme Court’s holding applies more broadly” to all other race, color, or national origin-based decisions and benefits at federally funded colleges and universities, as well as to all educational institutions (including preschools, elementary, and postsecondary schools). In the letter, OCR specifically states that, based on its interpretation of Title VI and SFFA, educational institutions may not:

  • Use race in educational decisions pertaining to admissions, financial aid, or scholarships or in other institutional programming, including prizes, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life;
  • Use race in employment decisions pertaining to hiring, promotion, compensation, or administrative support;
  • Separate or segregate students based on race, nor distribute benefits or burdens based on race;
  • Use a student’s personal essays, writing examples, participation in extracurricular involvement or other “cues” or “proxies” as “a means of determining or predicting a student’s race and favoring or disfavoring such students”;
  • Eliminate standardized testing to achieve a desired racial balance or to increase racial diversity; and/or
  • Maintain diversity, equity, and inclusion (“DEI”) programs that “deny students the ability to participate fully in the life of a school.”

The Dear Colleague letter ultimately advises all educational institutions to: (1) ensure that their policies and actions comply with existing civil rights law; (2) “cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends;” and (3) “cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.” 

Finally, the Dear Colleague letter reminds federally funded schools that the penalty for violating Title VI and other applicable federal laws is the potential loss of federal funding, and that OCR will begin to “take appropriate measures to assess compliance… based on the understanding embodied in this letter” within 14 days – i.e. February 28, 2025.

Notably, the Dear Colleague letter does not address decision-making based on other protected characteristics aside from race, color and national origin, such as gender (which is subject to a separate law, Title IX).

Based on this latest guidance from OCR, all federally funded schools, and particularly those that are committed to maintaining policies and programs that promote diversity, are encouraged to review any race-based, color-based, national origin-based or DEI programs that they administer and determine whether those programs may potentially violate the law or present an increased risk of an enforcement action by the government.

If you have any questions on the Dear Colleague Letter or how it may impact you, please contact your local Quarles attorney, or:

Please visit our Federal Policy Watch: Monitoring White House Developments page for more insight about navigating changes at the federal level.

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