On April 9, 2025, Dr. Tony Sanders, State Superintendent of Education, on behalf of the Illinois State Board of Education (“ISBE”), responded to the U.S. Department of Education’s (“Department”) April 3, 2025, request for certification regarding Title VI antidiscrimination practices. The Department sent a letter to State Commissioners requiring them to certify that they comply with federal antidiscrimination obligations, as interpreted by the Department, in order to continue receiving federal financial assistance. In the Department’s April 3, 2025, letter, State Education Agencies (“SEA”) were ordered to certify their compliance within ten days of the letter. The ISBE certified that it complies with Title VI of the Civil Rights Act of 1964 and submits regular applications certifying its compliance with all required assurances for federal programs.

However, the ISBE outlines its various concerns with the Department’s request. 

• The Department seeks to change the terms and conditions of ISBE’s federal grant award without formal administrative process. ISBE cites to the U.S. Code on Education (20 USC 1232) to support its position that the Department cannot make changes to legal assurances and impose new requirements without adhering to rulemaking procedures. Specifically, that an agency must undertake notice and comment and respond to the public’s comment when attempting to create a rule with the force of law.
• The Department does not provide sufficient clarity on the specific programs and activities it attempts to regulate. The April 3 letter references “certain DEI practices” and “illegal DEI” without a definition. Further, there are no state or federal laws that prohibit diversity, equity or inclusion.
• A recent Illinois Federal court decision enjoined a similar request for certification of compliance. In Chicago Women in Trades v. Trump, 2025 WL 933871 (N.D.Ill. March 27, 2025), the government requested a certification regarding “illegal DEI programs.” The court noted that the government failed to provide any guidance on what “illegal DEI programs” means and it is unclear due to the new Administration’s view on this topic. The court said that without a clearer indication of what the government considers illegal in this aspect, it puts certifying individuals in a “difficult and perhaps impossible position.”
• The recent communications and requests by the Department are an abrupt shift from its previous positions on diversity, equity and inclusion. Specifically, ISBE notes former Secretary of Education Betsy Devos’ opinions that diversity, equity and inclusion are highly important. ISBE cites a Supreme Court opinion that held that when agencies change their positions, they must “provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221-222 (2016). And here, the Department has provided no such explanation.
• The ISBE asks the Department to provide specific activities related to diversity, equity and inclusion it believes violate Title VI.
• Lastly, ISBE requests the Department provide the legal authority that permits them to require a SEA to obtain individual certifications from each of its Local Education Agencies, report on their signature status, and propose enforcement plans to the Department for approval in connection with a request for certification.

On April 10, 2025, the NEA announced that it reached an agreement with the Department that will prevent the Department from taking any action on its certification requirement until at least April 24.

At this time, our best advice is to stay the course and see what happens over the next couple of weeks.  School Districts should also ensure that any DEI initiatives do not discriminate or segregate on the basis of race, color, or national origin as explained in the Department’s FAQ document from February 28.  Please contact your KTJ attorney with any specific questions.

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