On February 14, the U.S. Department of Education (ED) released a Dear Colleague Letter suggesting a broad interpretation of the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard and directing educational institutions to comply with instructions outlined in the letter related to civil rights and anti-discrimination. However, many educational institutions had questions about the broad interpretations and directives provided in the Dear Colleague letter.
To address some of those questions, ED released an additional set of Frequently Asked Questions on March 1. Notably, the FAQs largely only focus on race, and not other student characteristics. The questions addressed include:
- Can schools separate students by race if they treat all students equally?
- Are Diversity, Equity, and Inclusion (DEI) programs unlawful under Students for Fair Admissions v. Harvard?
- How will OCR investigate allegations of covert discrimination?
- How will OCR proceed with schools that it determines are out of compliance with Title VI?
The FAQs do suggest that some DEI programs would not be found in violation of the civil rights law, assuming programs do not “engage in racial exclusion or discrimination” and “are open to all students regardless of race.”
It is important to note that the Dear Colleague Letter and related FAQs are merely guidance and do not have the force and effect of law and do not create new legal standards. The issues addressed in both are already facing legal challenges however, which are likely to continue.
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