April 3, 2025 Department of Education Letter

On April 3, 2025 the U.S. Department of Education (“Department”) sent a letter to State Commissioners who oversee K-12 State Education Agencies (“SEA”) requiring them to certify that they comply with federal antidiscrimination obligations in order to continue to receive federal financial assistance. The certification letter states that acknowledging compliance constitutes “a material condition for the continued receipt of federal financial assistance.” The Department specifically requests certification of compliance with Title VI of the Civil Rights Act and the Supreme Court’s 2023 holding in Student for Fair Admissions v. Harvard (“SFFA”).  The letter further requires the signer to certify compliance with “the below legal obligations,” which include the Department’s summary of certain statutes and cases.

The authority of this letter comes from Title VI’s connection to federal funding, specifically that Title VI states that no person may be discriminated against under “any program or activity receiving Federal financial assistance.” Schools are programs and activities that receive federal financial assistance and are thus subject to Title VI’s prohibition on discrimination based on race, color, or national origin. Since the Department has the authority to grant federal funds to education agencies, they want reassurance and certification that those they grant funds to comply with federal antidiscrimination requirements. The Department states that this letter is an important step to ensure that states understand their federal obligations with respect to these antidiscrimination laws.  

The certification request letter states that “any violation of Title VI – including the use of Diversity, Equity, & Inclusion (“DEI”) programs to advantage one’s race over another – is impermissible.” Further, the letter warns that the continued use of illegal DEI practices may lead to serious consequences for the individual or entity, including:

1. The use of the provisions of 42 U.S.C. § 2000d-1 to seek the “termination of or refusal to grant or to continue assistance under such program,” eliminating federal funding for any SEA, LEA, or educational institution that engages in such conduct.
2. For entities and institutions that use DEI practices in violation of federal law, those entities may incur substantial liabilities, including the potential initiation of litigation for breach of contract by the Department of Justice in connection with civil rights guarantees contained in federal contracts and grant awards seeking to recover previously received funds paid to them under these contracts and grants.
3. Moreover, the submissions of claims for money from the federal government when an entity is not in compliance with Title VI and/or its assurances due to certain DEI practices could subject the entity to liability under “[t]he False Claims Act (FCA) [which] imposes liability on anyone who ‘knowingly’ submits a ‘false’ claim to the Government.” United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 742 (2023) (citing 31 U.S.C. § 3729(a)). Under the FCA, violators face penalties including treble damages and civil penalties of thousands of dollars per violation.

SEAs have ten days to certify to the Department that they are complying with federal civil rights laws. Further, SEAs are responsible for reporting on their state and for collecting the certification responses from their Local Education Agencies. It is unclear at this time what the ISBE intends to do.

February 14, 2025 Office of Civil Rights Dear Colleague Letter

As way of background, the April 3, 2025 letter comes after the Department’s previously issued stance on federal law regarding antidiscrimination. On February 14, 2025, the Office for Civil Rights (“OCR”) issued a Dear Colleague Letter intending to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance.” The OCR states that in recent years, schools have discriminated against students on the basis of race, through race-based preferences and DEI programs, which they allege bring racial stereotypes and race consciousness into daily training, programming and discipline.

The OCR summarized the decision of SFFA by explaining that it clarified that the use of racial preferences in college admissions is unlawful and that “classifying and assigning students based on their race” is only lawful if it satisfies strict scrutiny. Strict scrutiny is a high bar that requires the use of race to be “narrowly tailored to achieve a compelling interest.” Under this test, racial balancing and diversity are not considered compelling state interests.

Although the SFFA case focused on college admissions decisions, the Department’s interpretation is that Supreme Court’s holding applies to other activities of other educational institutions. They believe the test from SFFA is simply, “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.” With this, the Department states that federal law prohibits using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarship, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic and campus life. Basically, under this interpretation, all actions by entities who receive federal funds are prohibited from being based on race, either directly or indirectly.

In summary, the Department believes the law is clear in that “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.” In essence they indicate that the holding in SFFA applies to prohibit racial classifications, racial preferences and racial stereotypes. They clarify that even programs that appear neutral on their face may be motivated by racial considerations and rely on non-racial information as a proxy for race and as such, violate of the law. The OCR uses DEI programs as an example of what they believe to be this type of less direct but still prohibited discrimination.

The Department advises all educational institutions to (1) ensure their policies and actions comply with civil rights laws; (2) cease all efforts to circumvent prohibition on the use of race by relying on indirect means; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used to circumvent the prohibited uses of race. The letter closes with the reiteration that institutions who fail to comply with this federal law interpretation may face potential loss of federal funding.

Office of Civil Rights Questions and Answers:

In response to some confusion regarding their February 14 letter, the OCR created a “Q&A Document” to clarify the Department’s interpretation of federal law. Some of their important responses are summarized below.

• The Department states that the SFFA decision applies race-based policies in education generally, because of the broad reasoning used by the Supreme Court even though the facts were about racial preferences in university admissions. Specifically, the Department outlines that the Court articulated two rules about school policies or programs.
  • (1) Schools cannot use race as a stereotype or negative, meaning they cannot assume that race implies something about an individual. Nor can they treat race as a ‘plus factor’ because being that indicates other races would be a ‘negative factor.’
  • (2) When racial classifications do not involve conscious stereotyping about members of a particular race, racial classifications still raise Fourteenth Amendment concerns and are subject to strict scrutiny.
• Programs do not automatically violate Title VI by using the words “diversity,” “equity,” or “inclusion.” However, polices or programs may not treat students differently based on race, engage in racial stereotyping or create hostile environments for students of certain races. As long as programs are inclusive to those of all races, they are legal. However, the Department caveats this with the statement that schools still must consider whether any program discourages members of all races from attending, either by excluding or discouraging students of a particular race or by creating hostile environments for students who do participate.
• The OCR letter nor the Department’s interpretation of law restricts any rights otherwise protected by the First Amendment, like discussion by students and teachers of topics related to race or DEI. Yet, First Amendment rights do not relieve schools of their Title VI obligations nor their duty to respond to racial harassment that creates a hostile environment.
• Schools must not discriminate based on race in discipline or sanctions of students.
• Title VI applies to how schools select contractors to carry out their functions, so schools may not discriminate based on race, color or national origin in choosing its after school programs, substitute teachers, cafeteria services, and special educations service providers.
• If OCR determines a school is not in compliance with Title VI, it will contact the school and attempt to negotiate a voluntary resolution agreement. If a school is unwilling to negotiate a resolution agreement, the OCR will inform the school of the consequences, which could include administrative proceedings or DOJ judicial proceedings.

Conclusion:

Unfortunately, at this moment we are forced to adopt a “wait and see” posture.  The ISBE was given a 10 calendar day deadline to certify, and we do not know what they are going to do.  Obviously, the ISBE’s response to the letter will impact each Illinois school district.  We at KTJ are closely monitoring this situation and will bring you any updates as they occur.

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