This blog post will be updated if we gain any further clarity on the intent of not only the guidance, but also the willingness of the Trump Administration to enforce it. AASA’s Advocacy Team will continue to monitor the myriad announcements and policy priorities released by the Administration, reporting on what they intend, what they include, if policy is rolled back, and the possible implications for districts.
On February 14th, the Office of Civil Rights
issued guidance that threatens districts with the loss of federal funding if they are found to be “treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice or equity…put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.” Significantly, the Department warned against “relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law.” It considers any DEI program that teaches “students that certain racial groups bear unique moral burdens that others do not” as also violating civil rights laws. This means the guidance extends well beyond existing law to denounce policies designed to enhance diversity, even if they do not employ racial classifications or intentional racial balancing.
The guidance warned that OCR will launch compliance reviews—investigations initiated based on OCR’s discretion rather than in response to complaints— beginning March 1 for those that fail to follow the directives in the guidance. Further, it implies that if schools continue considering diversity goals in any form, they could face an immediate risk of losing federal funding.
Though a footnote concedes that the guidance “does not have the force and effect of law,” it still threatens educational institutions with severe consequences—namely, loss of federal funding—for noncompliance. However, the threat by OCR to withhold funding may not be very convincing for several reasons:
- President’s Trump recent halt to OCR enforcement makes widespread proactive enforcement action against districts less possible;
- The legal arguments underpinning this guidance are likely to be successfully challenged in court.
It is also important for districts to remember that there is a long-drawn out process for rescinding funding for failure to comply with civil rights laws. OCR must first initiate a compliance review or other investigation, actually investigate the complaint, including allowing the educational institution to submit data and a legal response to the allegations, and make a finding that the institution or agency has violated the law. Even then, OCR always offers the institution or agency the opportunity to voluntarily enter into a resolution agreement that spells out the corrective actions needed before threatening federal funding. If the district chooses not to enter into a resolution agreement, it has the right to due process in administrative court before any action is taken to suspend, terminate or withhold federal funding. Finally, the district can also have the option to challenge OCR’s interpretation of Title VI in federal court.
Jackie Wernz, AASA’s most trusted education civil rights attorney, has written that this guidance appears motivated more by intimidation than actual enforcement power. Her view is that if a districts feels compelled to try and proactively avoid OCR challenges they should “focus on programs and activities that might be at risk under the current law, regulations, and judicial guidance. Policies that explicitly use race in admissions, financial aid, hiring, or discipline—such as racial quotas, set-asides, or preferential treatment—are the most at risk under current law. Similarly, DEI programs that stereotype individuals or groups, assign racial blame, or suppress speech based on race could be suspect. However, there is much less support for arguments against race-neutral-yet-race-conscious policies like those used in cases in the 1st and 4th Circuit and there certainly is no legal merit for the idea that considering diversity goals or race at all is a problem.” You can read more about the guidance
on her blog.
Finally, no federal law prevents teaching about race and race-related topics and any attempt by OCR to prevent discussions on race would violate a host of federal laws and raise First Amendment issues. Senator Patty Murray (D-WA), who is Ranking Member of the Senate Appropriations Committee released this statement in response to the guidance: “While it’s anyone’s guess what falls under the Trump administration’s definition of ‘DEI’, there is simply no authority or basis for Trump to impose such a mandate. In fact, federal laws prohibit ANY president from telling schools and colleges what to teach, including the Every Student Succeeds Act."
