Following the executive orders (EOs) signed by the Trump Administration focused on diversity, equity and inclusion (DEI), and in the wake of the US Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023), the Department of Education issued a “Dear Colleague” letter on Friday, February 14 outlining its interpretation of federal civil rights laws, particularly Title VI of the Civil Rights Act of 1964. The letter expanded on the Supreme Court’s decision regarding the use of racial preferences in college admissions and stated that federal law prohibits schools that receive federal funding from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. The letter provided a 14-day deadline for institutions to eliminate the use of race in these decisions or risk losing federal funding.

What Board Members Need to Know

The letter does not carry the force of law; it is simply a statement describing how the Department intends to interpret the law.
Titles VI, VII, and IX remain in effect, along with the court decisions interpreting them.
The letter signals increased scrutiny by the Department of race-based policies, including admissions, scholarships, hiring, and DEI initiatives, and also extends scrutiny to administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.
Multiple legal challenges to the letter are expected, likely starting with temporary restraining orders or preliminary injunctions that could delay enforcement.
Institutions should review and ensure that their diversity programs, scholarships, and other aspects of operations and student life as stated in the letter remain inclusive and non-exclusionary, e.g., open to all who apply regardless of race.

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Why This Matters

The executive actions and letter could have a serious impact on an institution’s access to federal funding, institutional activities, and enrollment.

This is an ongoing issue that we expect will be largely determined in the courts. The law (statutory, regulatory, and case law) as currently set forth supports DEI practices that are non-exclusionary. However, institutions should ensure they are in full compliance and be prepared for the possibility of a shift in the positions of the courts and the law.

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What to Do

Consider developing a governing board task force to understand the issues and to provide guidance and support for institutional response; ensure inclusivity and non-discrimination are reflected in all policies and practices; stay engaged in legal developments and advocacy; and comply with the law while actively working to shape its future.

Steps to consider:

Conduct an internal audit of your programs, scholarships, student organizations, and hiring practices to ensure they are open to all and exclude no one.
Maintain a focus on inclusion, equal access, academic enrichment, and non-discriminatory principles in your institution’s purpose, mission statement, and policies.
Follow or participate in the litigation that is expected.
Avoid abrupt changes to existing DEI programs until legal challenges play out. Note this is independent of any state requirements with which you may have to comply now.
Follow the law once it is clear, and work to change it if you don’t agree with it.
Don’t retreat or be silent. Take your seat at the table and make your voice heard through your congressional representatives.

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