On April 3, the U.S. Department of Education (DOE) issued a letter to all State Commissioners overseeing K-12 State Education Agencies (SEAs) requiring that the state education department collect attestations from all local education agencies (LEAs) related to compliance with Title VI of the Civil Rights Act and the responsibilities outlined in Students for Fair Admissions v. Harvard (“SFFA”).
What are the Title VI Certification forms which were sent to schools?
The certification forms for school districts require that they certify their compliance with Trump’s administration’s anti-discrimination obligations to continue receiving federal financial assistance. The forms state that by signing, SEAs and LEAs are “certifying compliance with Title VI and SFFA.” The forms are due within 10 days.
Very importantly, non-compliance carries a risk of loss of federal funding, which is a way of putting teeth into the Department’s previous guidance.
What is the Students for Fair Admissions case about what does it mean?
In SFFA, the U.S. Supreme Court held that Harvard’s and University of North Carolina’s race-conscious admissions programs violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The Court found that the universities’ use of race as a factor in admissions decisions was not narrowly tailored to achieve the interest of diversity and thus unconstitutional.
As its February 14, 2025 Dear Colleague letter and recent press releases make clear, the DOE interprets SFFA to mean that “put simply, the Equal Protection Clause and Title VI prohibit race-based action, with only the narrowest of exceptions” including decisions about “admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”
What does this mean for school districts?
The certification form requires LEAs to certify compliance with SFFA and Title VI. Not all of the practical implications of this are clear, but the DOE issued a FAQ on February 28th which attempted to outline some guidelines for programming which complies with its guidance, including the following examples:
• Programs focused on particular cultures or heritages may be permissible if open to all students regardless of race.
• Programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI.
• Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate or recognize historical events and contributions, and promote awareness, so long as they do not engage in racial exclusion or discrimination
• First Amendment protections apply, but programs may still violate Title VI if they create a hostile environment based on race. The following examples are provided:
o For example, an elementary school that sponsors programming that acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world could create a racially hostile environment.
o The more extreme practices at a university—such as requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes, and assigning them coursework that requires them to identify by race and then complete tasks differentiated by race—are all forms of school-on-student harassment that could create a hostile environment under Title VI.
• Race-neutral programs will also be reviewed to see if they have a discriminatory intent. OCR states that factors to consider whether race-neutral programs comply include (1) whether members of a particular race were treated differently than similarly situated students of other races; (2) the historical background or administrative history of the policy or decision; (3) whether there was a departure from normal procedures in making the policy or decision; (4) whether there was a pattern regarding policies or decisions towards members of a particular race; (5) statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and (6) whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.
• While schools cannot use race-based admissions policies, they may consider an applicant’s discussion of how race affected their life if tied to character qualities or unique abilities. However, schools cannot indirectly establish racially preferential regimes through application essays or other means.
• OCR advises schools to review policies and cease reliance on third parties that may circumvent prohibitions on using race.
Bottom Line For Schools
Can Educational Programs discuss race or DEI under the law?
The short answer is that if the programs are accessible to all, do not create a hostile environment, do not engage in racial stereotyping, and do not treat students differently on the basis of race, then maybe.
DOE’s guidance remains subject to litigation based on the First Amendment and Equal Protection Clause in a number of different courts, and will likely be appealed to the U.S. Supreme Court. A preliminary injunction against enforcement of these policies was recently lifted in a federal court case in Maryland which means they are enforceable for the time being. We will keep you updated as to the outcome of these cases.
Schools might well be advised to identify any practices, programs or policies they think might conflict with DOE’s Dear Colleague Letter and bring it to the attention of your legal counsel for review.
