Education Law Notes  

If nothing else, the early days of the Trump administration 2.0 have been a whirlwind of legal activity.  Diversity, equity and inclusion efforts have of course been at the forefront and on February 14, 2025 the federal Department of Education’s Office for Civil Rights (OCR) issued a new Dear Colleague Letter (DCL) making abundantly clear that the new administration regards many DEI programs and initiatives maintained by educational institutions as discriminatory under federal law. 

OCR DEI Guidance

Relying on the United States Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), OCR’s DCL emphasizes its view that Title VI of the Civil Rights Act of 1964 only permits educational institutions that receive federal funds to distinguish between students on the basis of race in the rarest of circumstances and therefore “nebulous concepts like racial balancing and diversity are not compelling interests (entitled to legal protection under Title VI).”  As such, OCR warned that schools that use DEI or other programs that directly or indirectly confer preferences or other benefits to students on the basis of race were at risk of losing federal funding and that the federal Department of Education would be taking appropriate action to assess compliance with the new OCR directive as soon as February 28, 2025.

Late last week in conjunction with the February 14 DCL, the federal Department of Education launched a new so-called “End DEI” portal that allows members of the public to report suspected illegal discriminatory practices at schools so that “all students have access to meaningful learning free of divisive ideologies and indoctrination . . .”. 

Additionally, on February 28 OCR also released a FAQ guidance document entitled “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act” that spells out OCR’s approach to DEI and race discrimination under Title VI in greater detail.  The new FAQs reiterate OCRs reliance on the U.S Supreme Court’s decision in Students for Fair Admissions in determining that school practices that use race as a “stereotype or negative” in conferring benefits to students are illegal under both Title VI and the Equal Protection Clause of the United States Constitution.  The FAQ guidance then goes on to explain that the question of whether a particular school DEI policy or program violates Title VI is a fact specific question that does not just depend on a policy or program’s use of the words “diversity,” “equity” or “inclusion.”  To this end, the FAQs state:

Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races. For example, schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race. Nor would educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate or recognize historical events and contributions, and promote awareness, so long as they do not engage in racial exclusion or discrimination. However, schools must consider whether any school programming discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate.

The FAQs acknowledge that two federal statutes – the Department of Education Organization Act, 20 U.S.C. § 3403(b), and the Elementary and Secondary Education Act, 20 U.S.C. § 7907(a) – explicitly prohibit the Department of Education from directing, supervising or controlling school curriculum or programs of instruction.  As such, the new OCR FAQ’s instead contend that instruction that acts to create a racially hostile environment for students would violate Title VI:

For example, an elementary school that sponsors programming that acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world could create a racially hostile environment. But similar themes in a class discussion at a university would be less likely to create a racially hostile environment. In all cases, the facts and circumstances of that discussion will dictate the answer to that inquiry.

The FAQ guidance goes on to note that Title VI prohibits schools from discrimination in the procurement of goods and services – which may call into question school supplier diversity programs – and finally concludes by acknowledging that the withholding of federal funds by OCR can only be accomplished through existing statutorily defined procedures.  As such, if OCR determines that Title VI has been violated it must first attempt to negotiate a resolution agreement with the educational institution.  It is only if a resolution agreement cannot be reached that OCR can attempt to withhold federal funds through further legal proceedings.  Notably, while the withholding of federal funds is a tool that OCR once used aggressively during the civil rights era to compel the desegregation of southern schools, there are no reported cases of Title VI federal funds withholding in at least the last thirty years.

The Connecticut State Department of Education’s Response

Last week on February 26, before the OCR FAQs were released, the Connecticut State Department of Education (CSDE) issued its own guidance interpreting the February 14, 2025 OCR DCL.  Entitled “Clarification of February 14, 2025 Office for Civil Rights’ Dear Colleague Letter,” the CSDE emphasizes several points that OCR omitted from its original February 14 DCL but then noted in the subsequent FAQs.  For instance, the CSDE guidance highlights that the Department of Education Organization Act prohibits the U.S. Department of Education from using federal funding as a means of directing school curriculum and instruction and notes – as OCR did in its post-February 14 DCL FAQs – that Title VI federal funding can only be terminated following completion of a multi-step adjudicatory process. 

Finally, the CSDE guidance also makes clear that the February 14 DCL does not order schools to simply terminate any and all DEI programs by February 28, but instead warned that “if an educational entity gives preferential – or adverse -- treatment to any student, or body of students, based on their race, color, or national origin, either through DEI initiatives or otherwise, and if that disparity in treatment deprives a student, or body of students, of an educational benefit, that is a violation of Title VI.”

What Does This All Mean for Connecticut Schools?

The dust is still settling but at this point in time a few points seem clear.  First, given the February 14 OCR DCL and subsequent FAQs, Connecticut school leaders should closely review DEI policies, programs and practices to make sure that students are not given preferential treatment on the basis of race, color or national origin or directly or indirectly subjected to any form of racial stereotyping.  While most Connecticut school districts do not maintain board-level DEI policies, school practices that confer any sort of benefit to students directly on the basis of race, or indirectly on the basis of membership in a historically disadvantaged community or some other similar criterion that could be closely associated with race, color or national origin should be closely scrutinized.  Per the OCR FAQs school supplier diversity programs should also be carefully reviewed.  Moreover, even though the law is clear that the federal government cannot direct local curriculum, the use of so-called “implicit bias” instruction in the classroom with students – or as part of educator or staff training – should be very closely examined since OCR suggests that such forms of instruction (if it shames  persons based upon their race) may form the basis of Title VI hostile educational environment claims.

Beyond these relatively straightforward DEI considerations are some more difficult questions particularly when it comes to school compliance with seemingly contradictory state law obligations.  For instance, district compliance with state-law mandates on items like the racial imbalance law which directs school districts to work to achieve roughly equivalent minority student enrollment across district schools could seemingly run afoul of OCR’s new guidance.  The same may be the case for certain charter and magnet school state law mandates that were specifically implemented – as a result of seminal Connecticut Supreme Court decisions like Sheff v. O’Neil – to reduce the effects of racial, ethnic and economic isolation within Connecticut schools in order to effectuate Connecticut state constitutional commands. 

Can these state law requirements and OCR’s Title VI guidance be reconciled?  The answer is not obviously clear.  While Connecticut K-12 public schools are legally obligated to implement the educational interests of the state and therefore must comply with applicable Connecticut state law, to the extent that such schools are the recipients of federal funds they must also comply with Title VI of the Civil Rights Act of 1964.  Ordinarily under the United States Constitution’s Supremacy Clause federal law supersedes contrary state law provisions, but when it comes to what is technically a funding statute – like Title VI – is there necessarily a conflict?  

While there have been a number of significant legal developments on the Title VI “DEI” front since President Trump returned to office it seems very likely that more twists and turns will be on their way.  As always school leaders should consult with their legal counsel in navigating these issues.