Education Department Issues Guidance on Race Based Programs
The Department of Education (ED) has issued guidance to
educational institutions at all levels to eliminate race-based considerations
in admissions, hiring and other programs. On Feb. 14, in a Dear Colleague letter to schools receiving federal funding, ED
mandated that race preferences in areas such as scholarships, disciplinary actions
and hiring must be discontinued. According to the guidance schools that
fail to comply by Feb. 28 risk losing federal funding.
Specifically, according to the Dear Colleague letter, “Federal law…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.” Therefore, schools must examine everything from recruitment strategies
and scholarship criteria to student organization funding and faculty hiring practices
to ensure they are in compliance with this mandate.
ED also notes that, “race-based decision-making, no matter
the form, remains impermissible. For example, a school may not use students’
personal essays, writing samples, participation in extracurriculars, or other
cues as a means of determining or predicting a student’s race and favoring or
disfavoring such students. Relying on non-racial information as a proxy for race,
and making decisions based on that information, violates the law.”
Furthermore, the Department advises all educational institutions
to: “(1) ensure that their policies and actions comply with existing civil rights
law; (2) cease all efforts to circumvent prohibitions on the use of race by relying
on proxies or other indirect means to accomplish such ends; and (3) cease all
reliance on third-party contractors, clearinghouses, or aggregators that are being
used by institutions in an effort to circumvent prohibited uses of race.”
Though schools have 14 days to comply with this mandate, ED
has not yet fully detailed how it will enforce compliance or assess institutions’
adherence to the new policies. However, the Department has established a complaint
system through its Office of Civil Rights for individuals who believe an institution has violated these new guidelines.
This mandate builds on the Supreme Court’s decision in Students
for Fair Admissions v. Harvard and extends beyond higher education
to include elementary, middle and high schools. It requires schools to “evaluate
students based solely on merit, accomplishment, and character.”
It also directly challenges diversity, equity and inclusion
(DEI) programs, which the Department argues have led to “widespread censorship”
and a “repressive viewpoint monoculture” on campuses. ED claims these programs
have contributed to censorship through actions, such as deplatforming speakers
with differing views and using bias response teams to investigate individuals
who challenge institutional racial policies.
ADEA will continue to monitor ED communications on this and other matters and report
on them. Questions about compliance or other actions should be directed to the
institution’s on campus legal counsel.
