OCR Issues “Dear Colleague Letter” Concerning DEI Programs; Federal Court Subsequently Blocks Related Executive Orders

03.03.2025

On February 14, 2025, the Office for Civil Rights (“OCR”) of the U.S. Department of Education (“Department”) issued a Dear Colleague Letter (“DCL”) to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance” under Title VI of the Civil Rights Act of 1964 (“Title VI”)[1] and the Equal Protection Clause of the 14th Amendment of the United States Constitution.[2]

The issuance of the February 14th DCL followed several recent Executive Orders by the White House that have the stated purpose of ending “illegal” Diversity, Equity, and Inclusion (“DEI”) or Diversity, Equity, Inclusion, and Accessibility (“DEIA”) programs across the United States.[3] The DCL specifically highlighted that recipients of federal funding from the Department are to comply with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance. The DCL further advised that OCR’s interpretation of potential violations of Title VI is to be informed by the U.S. Supreme Court’s recent decision in Students for Fair Admissions, Inc v. President & Fellows of Harvard College (2023) 600 U.S. 181 (“SFFA”), which held that the use of race in college admission decisions is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment.

This Alert summarizes the DCL, highlights existing obligations for public educational institutions under federal and state laws, briefly summarizes a preliminary injunction issued by a federal district court enjoining key portions of two recent DEI Executive Orders and offers considerations for responding to the DCL. Given the uncertainties regarding the DCL, institutions should consult legal counsel regarding any response strategy.

Dear Colleague Letter and its Interpretation of the Supreme Court’s Ruling in SFFA

The DCL sets forth OCR’s stated concerns regarding DEI programs. Although the DCL does not provide a specific definition of what OCR means by “DEI,” the letter generally characterizes such programs as discriminatory, stating, for example:

“[C]olleges, universities, and K-12 schools have routinely used race as a factor in admissions, financial aid, hiring, training, and other institutional programming.”

and:

“Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them – particularly during the last four years – under the banner of ‘diversity, equity, and inclusions (‘DEI’), smuggling racial stereotypes and explicit race consciousness into everyday training, programming, and discipline.”

The DCL does not cite specific examples or data in support of these assertions.

The U.S. Supreme Court’s 2023 decision in SFFA addressed the specific context of admissions criteria and decisions of postsecondary educational institutions. The February 14, 2025 DCL advised that OCR, in carrying out its enforcement responsibilities under Title VI, plans to interpret the U.S. Supreme Court’s holding more broadly and apply it to matters beyond admissions at colleges or universities, as explained below:

Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities 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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

Also noteworthy, the DCL specifically identifies as a potential enforcement target programs that “may appear neutral on their face,” but that “are, in fact, motivated by racial considerations.” The DCL provides as an example of such practices, “[r]elying on non-racial information as a proxy for race, and making decisions based on that information.” As stated by the DCL, in OCR’s view, “It would for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

The DCL also asserts that “DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes.” The DCL does not provide any specific examples of such DEI programs.

The DCL states as an overarching principle, “The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”

Existing Federal and State Anti-Discrimination Laws

Existing federal and California laws already prohibit discrimination or preference based on race, color, and national origin, among other protected classifications. Accordingly, California public educational institutions, including postsecondary educational institutions, should have already been in compliance with these anti-discrimination laws before the issuance of the February 14th DCL. This includes, for example, compliance with Title VI and the U.S. Supreme Court’s holding in SFFA, which is limited to college/university admissions.

Additionally, this includes compliance with California’s Proposition 209. Proposition 209 was a 1996 statewide initiative, also known as the “California Civil Rights Initiative,” that added Section 31 to Article I of the California Constitution. In relevant part, Proposition 209 provides:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.

“State” in this section includes political subdivisions such as local governments and school districts. In other words, Proposition 209 banned the use of race, color, national origin, or sex-based preferences in California by public institutions, including K-12 school districts, community colleges, and universities/colleges. Proposition 209 remains in effect and, as such, no public educational institution should be developing or implementing programs that run afoul of Proposition 209’s mandate.

Federal Court Injunction of Executive Orders Addressing DEI; Legal Challenge to DCL

On January 20 and 21, 2025, President Trump issued two Executive Orders specifically aimed at DEI initiatives maintained by federal agencies, contractors, and grantees.[4] On February 21, 2025, a federal court in Maryland issued a nationwide injunction blocking three key provisions of these Executive Orders. The court in National Ass’n of Diversity Officers in Higher Education v. Trump, ___ F.Supp.3d __, 2025 WL 573764 (D. Maryland, Feb. 21, 2025) identified the three invalid provisions as follows: (1) the “Termination Provision” directing all executive agencies to “terminate ‘equity-related grants or contracts,’” (2) the “Certification Provision” directing executive agencies to include in every contract or grant award a certification that the contractor or grantee does not have any programs promoting DEI that violate federal anti-discrimination law and providing that alleged violations can be subject to False Claims Act enforcement, and (3) the “Enforcement Threat Provision” directing the Attorney General to take measures to encourage the private sector to end illegal discrimination and preferences, including DEI, to deter such programs, and to identify potential civil compliance investigations. The Court found that these provisions are unconstitutional on two grounds.

First, according to the Maryland federal court, the Termination and Enforcement Threat Provisions of the Executive Orders are unconstitutionally vague in violation of the Due Process clause, because they do not define any operative terms such as “DEI,” “equity-related,” “illegal DEI,” and the like, thereby leaving affected federal contractors and grantees “at a loss for whether the administration will deem a particular policy, program, discussion, announcement, etc. to be among the ‘preferences, mandates, policies, programs, and activities’ the administration now deems illegal.”

Second, according to the Maryland federal court, certain provisions of the Executive Orders unconstitutionally abridge freedom of speech as protected by the First Amendment, because these provisions seek to deter expression that the government might find objectionable. The orders restrict expression based on “its message, its ideas, its subject matter or its content.” Thus, the Court found that the Certification and Enforcement Threat Provisions constitute “content” and “viewpoint discrimination” in violation of the First Amendment.

Based on the foregoing analysis, the Maryland federal court issued a preliminary injunction barring federal agencies from implementing the specified provisions of the Executive Orders.

The federal court ruling regarding the Executive Orders does not directly address the DCL. However, litigation has been initiated to challenge the DCL, and it may be expected that issues similar to those raised and addressed by the Maryland federal court will also be addressed in litigation over the DCL.

The future course of this litigation cannot be predicted with certainty. As of yet, there has been no court ruling regarding the DCL, and any rulings by trial courts likely would be appealed.

Impact of California Public Education Institutions

California public institutions should continue to follow the existing state and federal anti-discrimination laws that were in effect prior to the issuance of the DCL. By its own terms, the DCL states that it “does not have the force and effect of law and does not bind the public or create new legal standards.”[5] As such, educational institutions’ continued compliance with existing law, and particularly Title VI and Proposition 209, arguably should constitute compliance with the DCL.

California community colleges in particular remain subject to Title 5 regulations requiring the local development of Diversity, Equity, Inclusion and Accessibility criteria in employee evaluations and faculty tenure review. Such criteria should be developed and implemented in a manner consistent with Title VI, Title VII, Proposition 209, the California Fair Employment and Housing Act, and other federal and state laws prohibiting discrimination.

That said, the DCL reflects OCR’s current stated interpretation of existing federal antidiscrimination laws, and identifies practices that OCR believes are inconsistent with its interpretation of these laws. Thus, institutions should consider and consult with legal counsel regarding review of existing programs for policies and/or practices that may be inconsistent with OCR’s stated interpretation of existing laws as reflected in the DCL. Any contemplated changes to existing DEI programs or use of terminology in response to the DCL should be discussed with legal counsel prior to taking action. First, it is not entirely clear from the DCL what OCR means by “DEI.” Second, the mere existence of a program titled “DEI” or something similar is not, without more analysis, unlawful under governing federal or state laws. Matters such as the purpose and content of a given program, and the criteria used in selecting participants, should be reviewed and considered in consultation with legal counsel before decisions about changes are made.

AALRR attorneys are tracking the Executive Orders and policies of the new presidential administration, including those concerning DEI programs, related agency guidance, legal challenges, and state and federal legislation regarding DEI and related civil rights matters. We emphasize that this is a rapidly evolving area. If your agency has questions about its obligations under federal and state law concerning DEI programs, please contact your AALRR attorney or the authors of this Alert.

[1] Title VI specifically provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 U.S.C. § 2000d et seq.

[2] The Equal Protection Clause of the 14th Amendment of the United States Constitution specifically provides that no state shall “deny to any person within is jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

[3] Review AALRR’s previous Alert on two of the Executive Orders here: What California Public and Private Sector Employers Need to Know about the Trump Administration’s Executive Orders on Diversity, Equity, and Inclusion: Atkinson, Andelson, Loya, Ruud & Romo (aalrr.com)

[4] These Executive Orders were summarized in a previous AALRR alert: https://www.aalrr.com/newsroom-alerts-4110.

[5] DCL, fn. 3.