Sneak Preview: ED Letter Affirms Stance on Racial Preferences
(The following was excerpted from a recent Thompson Grants Compliance Expert article.) The Department of Education (ED) Office of Civil Rights (OCR) recently issued a Dear Colleague letter aiming to clarify and reaffirm the nondiscrimination obligations of schools and universities that receive ED financial assistance, calling for educational institutions to stop using racial preferences and stereotypes as factors in their admissions, hirings, promotions, scholarships and other activities.
Although the letter is agency policy and does not have the effect of federal law, it notes that educational institutions that fail to comply may, consistent with applicable law, face investigation and potential loss of federal funding. ED stated that it would begin enforcing the provisions within the letter on Feb. 28.
The letter alludes to existing legal requirements under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution and other relevant authorities, such as guidance documents, as issued by the Office of Management and Budget. “For decades, schools have been operating on the pretext that selecting students for ‘diversity’ or similar euphemisms is not selecting them based on race,” stated ED Acting Assistant Secretary for Civil Rights Craig Trainor. “No longer. Students should be assessed according to merit, accomplishment and character — not prejudged by the color of their skin. OCR will enforce that commitment.”
The letter cites the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which stated that the use of racial preferences in college admissions is unlawful and sets forth a framework for evaluating the use of race by entities covered by Title VI. The Court explained that classifying and assigning students based on their race is lawful only if it satisfies “strict scrutiny,” which means that any use of race must be necessary to achieve a compelling interest. According to the letter, the Supreme Court has recognized only two interests as compelling in the context of race-based action: (1) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute”; and (2) “avoiding imminent and serious risks to human safety in prisons, such as a race riot.” ED adds that concepts such as racial balancing and diversity are not compelling interests.
ED states that in this case, Harvard University and the University of North Carolina “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built or lessons learned, but the color of their skin. ... Treating someone differently because of their skin color is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.” Rather, “an individual’s race may never be used against him in the admissions process” and, in particular, “may not operate as a stereotype” in evaluating individual admissions candidates.
(The full version of this story has now been made available to all for a limited time here.)
Join us for our following Thompson Grants event:
2025 Thompson Grants Workshop: Indirect Costs | March 25, 2025 | Virtual Event
