Wait, Can He Actually Do That? Part 7: The Valentine's Day "Dear Colleague" Letter

Unless and until the Trump administration persuades Congress to eliminate the Department of Education (DOE) or, as with various other federal agencies subject to the diktats of Elon Musk, illegally eliminates the DOE on his own, the administration will use the DOE as a weapon in its multi-front war on DEI. A key illustration is a February 14, 2025 “Dear Colleague” letter from the Acting Assistant Secretary of Education regarding the administration’s understanding of the legal obligations imposed by Title VI.

The Valentine's Day Dear Colleague letter asserts that "[e]ducational institutions have toxically indoctrinated students with the false premise that the United States is built upon 'systemic and structural racism' and advanced discriminatory policies and practices." The letter advises recipient institutions (which include just about every educational institution in the country) to take various measures and make various reports or "face potential loss of federal funding."

Wait. Can the DOE actually do that? The answer depends on what exactly the DOE is asserting.

Before parsing the Dear Colleague letter, I offer a brief explanation for any readers who are wondering what exactly a "Dear Colleague" letter is and how it differs from an Executive Order (EO), such as the one Trump signed on the first day of his current presidential term aimed at "Ending Radical and Wasteful Government DEI Programs and Preferencing."

An EO issues directives to executive branch officials. Because those directives often lead to actions or inactions that affect the rights and interests of third parties, they can have practical legal effect, which is why we have seen lawsuits to enjoin various EOs. And indeed, on Friday of last week, a federal district judge in Maryland issued a preliminary injunction, applicable nationwide, against the "termination, certification, and enforcement threat provisions" of the anti-DEI EO in a case that was filed by the National Association of Diversity Officers in Higher Education and the American Association of University Professors.

Meanwhile, a Dear Colleague letter is, as the term implies, a letter. It comes from the Office of Civil Rights (OCR) of the DOE and is sent to officials at federally funded institutions (such as K-12 principals and college and university presidents) advising them of how the DOE intends to apply applicable statutes--frequently the anti-discrimination provisions of Titles VI and IX. It is not uncommon for a new administration to issue Dear Colleague letters that change the policy of the prior administration. For example, in the change from the Obama to Trump to Biden to Trump administrations, we have seen Dear Colleague letters used to achieve multiple reversals regarding the standards for evaluating complaints of sexual assault and sexual harassment under Title IX.

A Dear Colleague letter does not by itself have the force of law. It is simply an expression of the view of DOE/OCR about the legal obligations of recipients of federal funds. However, as a practical matter, a Dear Colleague letter can be quite consequential. A recipient institution's failure to comply with the view of the law expressed in a Dear Colleague letter will typically result in a DOE investigation that will be very costly to the institution. The ultimate weapon held by DOE is the ability to cut off all federal funding to the institution should it fail to reach a settlement with DOE. That ultimate weapon has never been used, but its threat is quite potent.

As an illustration, last year, both CUNY and the University of Michigan entered into resolution agreements to conclude DOE investigations of charges that the universities responded inadequately to antisemitic and anti-Muslim incidents on their campuses. Even when university leaders believe that the DOE view of the law is mistaken, there is considerable pressure to accede to DOE demands to end costly investigations. It was extremely unlikely that DOE would have ultimately withheld funds from either CUNY or Michigan (especially because the funding withholding would be on an all-or-nothing basis), but if ever there were an administration willing to break with tradition and use that ultimate weapon, it's the current one. And because no university president will want to poke the bear and be made into an example, that means that there is an incentive for universities to obey in advance.

What, exactly, does compliance look like in this latest instance? I'll address three aspects of the Valentine's Day Dear Colleague letter.

First, the Dear Colleague letter states that under the 2023 SCOTUS decision in Students for Fair Admissions v. Harvard, federal civil rights law forbids funded educational institutions from classifying applicants, students, or others based on race for just about any purpose, including "hiring, promotion, [and] compensation." That's a bit of a stretch. At least as applied to private universities (to which the constitutional equal protection holding of SFFA is not relevant), employment discrimination is governed by Title VII, not Title VI, which was at issue in SFFA. It is possible that some forms of race-based affirmative action in employment could still be legal, even after SFFA. That said, I think the Dear Colleague letter is almost certainly correct if read as a prediction that the Supreme Court will eventually read Title VII to require the same color-blind approach as the Court now finds in Title VI.

Second, however, the Dear Colleague letter mischaracterizes extant law in stating that even race-neutral means of achieving racial diversity are unlawful if adopted for that purpose. It states:

Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations. And 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. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one. It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.

Part of what is asserted in the foregoing two paragraphs is accurate. A college cannot use students' application essays to discern their respective racial identities and then use that racial information as the basis for an admissions bump (or penalty). But as the SFFA opinion expressly states, colleges can evaluate "an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." Meanwhile, the claim that Title VI forbids eliminating standardized testing with a race-conscious goal is wrong, as I explained in a recent Texas Law Review article that contributes to a substantial literature (cited therein) explaining why even the Court's conservatives seem inclined to uphold race-neutral means of achieving racial diversity.

Third, the Dear Colleague letter could be read to suggest that even classroom education or scholarship that promotes DEI (whatever its precise content), critical race theory, or other views the administration regards as too woke is forbidden. The letter states:

Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of “diversity, equity, and inclusion” (“DEI”), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.

The foregoing assertion does not make any demands, but it could be read to color what the DOE believes is forbidden. "Indoctrination," "training," and "programming" are all activities that can occur in classrooms. I'm not saying any funded schools are "indoctrinating" students, just that the Trump DOE could mean that term to encompass classroom education.

I don't believe that's the best reading of the Dear Colleague letter. Rather, I agree with Cornell University Interim President Michael Kotlikoff, who wrote the following in an open letter to the university community: "To our understanding, none of the recent federal guidance limits the academic freedom of our community to research or study any subject, our ability to exercise free expression within a safe and respectful community, or our ability to adhere to" the university's core principles, which include academic freedom and a commitment to diversity along a variety of dimensions, achieved without employing race-based classifications. 

But while that's probably the best reading of the Dear Colleague letter, it's notable that the letter as well as the now-enjoined EO seem designed to conflate all forms of DEI--most of which are perfectly legal, regardless of whether they are effective or a good idea--with unlawful use of race as an express criterion. I do not think this is an accident. To be sure, some of the bombastic rhetoric in the Dear Colleague Letter and the EO could simply be an effort to match the Dear Leader's insult-comic social media style. However, in other respects, I would not be surprised to learn that some clever lawyer working for Trump is hoping to scare the top brass and counsel at federally funded entities into over-complying by purging anything DEI-related, even if clearly legal and indeed protected free speech.

Moreover, even though I think the Dear Colleague letter is best read as not reaching classroom instruction, faculty research, or other expressive activities, this letter may not be the last word from the Trump DOE. Implicit in the charge of toxic indoctrination and the condemnation of recognizing the existence of systemic or structural racism is a threat that classroom instruction or trainings that identify such phenomena will be condemned by the Trump DOE on the ground that they create a hostile environment for white students, faculty, and staff in violation of federal civil rights laws.

Such a claim would be, in my view, outlandish. Of course it's possible in theory that anti-white statements in a class or a training could be severe or pervasive enough to create a hostile environment. But the sorts of material that get the rightwing-o-verse exercised about DEI do not come close to the threshold for such a conclusion. Furthermore, any effort to treat garden-variety DEI or the teaching of subjects like critical race theory as creating a hostile environment in violation of federal civil rights law would raise serious First Amendment issues (of the sort that provided one of the grounds for the federal court injunction of the parallel EO in the District of Maryland case).

Bottom Line: I agree with the conclusion of Interim President Kotlikoff and other academic leaders who distinguish between the broad assertions contained within the Dear Colleague letter and the rather narrow demands it is actually making. But I worry--indeed, I know--that the letter is already having an in terrorem effect, if not at my home institution, then elsewhere. Thus, once again, the answer to the "can he actually do that?" question is: maybe not, but he can probably get away with at least some of it.