The US Department of Education’s (the Department’s) Office for Civil Rights issued a sweeping “Dear Colleague” letter on February 14, 2025 outlining a new zero-tolerance policy for the consideration of race in any regard by academic institutions that receive federal funding. The letter states that the Department will enforce its new directive 14 days from the date of the letter and institutions that are found to be noncompliant “with federal civil rights law” may face the potential loss of federal funding.
The letter suggests that institutions may expect aggressive action by the government with respect to efforts to promote diversity that the Department views as discriminatory. All academic institutions that receive federal funding—spanning colleges, universities, K-12 institutions, and preschools—should use this opportunity to carefully assess their current practices, taking into account institutional priorities and risk tolerance in this new environment.
The Department’s letter, signed by Acting Assistant Secretary for Civil Rights Craig Trainor, begins by stating its intent to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the [Department]” and to suggest academic institutions are “discriminat[ing] against students on the basis of race” and “embrac[ing] . . . pervasive and repugnant race-based preferences and other forms of racial discrimination.”
The 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 claims institutions are “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline” through diversity, equity, and inclusion initiatives.
The letter discusses the US Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which held that the use of affirmative action in college admissions violates the Equal Protection Clause of the Fourteenth Amendment—but the letter articulates the Department’s view that the Court’s holding is not limited to admissions, and instead applies much more broadly.
The letter states “[f]ederal 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.” The Department also notes that it intends to crack down on not only express racial preferencing but also other programs that “[r]ely[] on non-racial information as a proxy for race.” This is significant because it expressly suggests the Department will consider even race-neutral criteria unlawful if the motivation is to achieve greater diversity.
The letter makes clear that the Department intends to enforce its new guidance broadly against all academic institutions that receive federal funding. The letter states that the Department will “vigorously enforce the law on equal terms as to all preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies, that receive financial assistance.”
Time is of the essence as the letter states that the Department “intends to take appropriate steps to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date.”
The letter advises 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.”
The letter concludes by warning that “[i]nstitutions that fail to comply . . . may . . . face potential loss of federal funding” and inviting anyone who believes they have been discriminated against by an academic institution to file a report with the Department. The letter also includes a link to the Office for Civil Rights online complaint form.
The Department’s new expansive stance puts academic institutions in a challenging position. On one hand, many institutions are deeply committed to promoting diversity, equity, and inclusion and providing opportunities for students who have historically faced disadvantages. On the other, many of these same institutions are heavily reliant on federal funding to operate.
The Department’s guidance purports to draw clear lines (“At its core, the test is simple: 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.”). But there will not be a one-size-fits-all approach when it comes to how academic institutions will choose to proceed in light of the Department’s new stance. Academic institutions will need to make difficult and highly individualized determinations about which practices—if any—they will change in light of the new and riskier environment.
At a minimum, all academic institutions should consider taking the following steps:
Morgan Lewis is available to consult with you to identify practices that may create legal risk and potential strategies for mitigating that risk.
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