On Feb. 28, the U.S. Department of Education released a “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act” (FAQ) document in an effort to answer questions about a dear colleague letter released on Feb. 14. The “Dear Colleague Letter: Title VI of the Civil Rights Act in Light of Students for Fair Admissions v. Harvard” (SFFA) outlines the department’s interpretation of the legal standards related to racial discrimination in schools. The letter raised concerns and confusion due to statements that schools had 14 days to comply with these newly articulated interpretations or risk losing federal funding.
The FAQ answers 15 questions explaining the U.S. Supreme Court’s decision in SFFA and how it interacts with Title VI, a federal law prohibiting racial discrimination in schools. SFFA was decided in 2023 and ended the use of affirmative action in college admission processes. In that case, the Court found that race-based admission practices were unconstitutional because they violated the 14th Amendment’s Equal Protection Clause. The Supreme Court also held that, because Title VI is “coextensive” with the Equal Protection Clause, the admission practices also violated Title VI. The FAQ describes the department’s intended broad application of the SFFA decision to all instances of racial discrimination in the educational context, not just those in admissions processes. Exactly how the plans detailed in the FAQ will be implemented is not clear, but several pieces of the FAQ provide insight into how the department will address allegations of racial discrimination in public education linked to diversity, equity and inclusion (DEI) practices.
Most helpful perhaps is in the third footnote of the FAQ, which states that “[t]he contents of this [FAQ] document do not have the force and effect of law and do not bind the public or impose new legal requirements; nor do they bind the Department of Education in the exercise of its discretionary enforcement authority.” This footnote acknowledges that the FAQ does not create new law — it simply explains the department’s interpretation of existing law. Question nine also recognizes the department’s limited authority in another context. While describing what may or may not be discussed in schools, the answer accurately states that the federal government and Education Department cannot exercise control over school curriculum and the content it includes. This task is left to states and, based on the FAQ’s language, it seems that the department continues to recognize this limitation.
The answers to questions 13 and 14 also provide information on what schools can expect given the department’s broad interpretation of SFFA. Question 13 outlines two tests that the department’s Office of Civil Rights (OCR) will use when investigating allegations of “covert discrimination” in schools — that is when a school implements “policies that appear neutral on their face but are made with a racially discriminatory purpose.” The answer describes that “different types of circumstantial evidence” will be considered together to determine if an inference of discriminatory intent exists. The circumstantial evidence could be any number of things including whether members of a particular race were treated differently than similarly situated students of other races, and a school’s history and stated policy of using racial classifications for “DEI objectives” such as “‘equity,’ a racially-oriented vision of social justice, or similar goals.”
In addition to this evidence-based analysis, OCR may use a three-step test taken from the Supreme Court’s decision in McDonnell Douglas Corp. v. Green, (411 U.S. 792 (1973)), to “access indirect evidence intentional discrimination.” In that test, the department will consider whether a school treated “a student or group of students of a particular race differently from a similarly situated student or group of students of other races” If so, the school must then provide “a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual.” The answer to question 13 explains that, if the school cannot do so, “or if the offered reason is found to be a pretext or cover for discrimination, OCR will conclude that unlawful discrimination has occurred.”
If discrimination is found to exist, the answer to question 14 describes what will happen next. Namely, a school will be given the opportunity to resolve the complaint by signing a resolution agreement that requires remedial action, compliance with which will be monitored by OCR. If a school decides not to agree to a resolution with OCR, OCR will inform the school of consequences and may initiate administrative proceedings or, in extreme cases, litigation against the school.
While there is some direction and clarity on what the letter and FAQ mean for schools, several things are still up in the air. It has been widely publicized and discussed that the current presidential administration hopes to close the Department of Education and downsize the federal workforce significantly. How these new processes will be implemented with a possibly nonexistent department and/or significantly smaller workforce remains to be seen. (The same uncertainty exists for the department’s new EndDEI.ed.gov website that allows for reports of discriminatory behavior to be made.) Similarly, another Supreme Court case, Loper Bright Enterprises v. Raimondo, (603 US _ (2024)), which significantly limited the ability of administrative agencies like the department to rely on their own interpretations of laws, could hamstring the ability of the department to implement this broad interpretation of law without more clear guidance from Congress.
Nonetheless, California schools have an advantage when interpreting the FAQ and letter due to Proposition 209, which added Section 31 to Article I of the California Constitution. Section 31 prohibits the use of race in the operation of public employment, public contracting and public education. This prohibition creates a buffer against the actions described in the letter and FAQ, because California schools have not been able to consider race in providing any benefits or services for almost 30 years.
