What Does the Education Department’s DEI Guidance Really Mean?

Higher ed leaders have been asking the U.S. Department of Education for more detailed guidance ever since the Office for Civil Rights issued a Dear Colleague letter on Feb. 14 calling for the elimination of race-conscious programming and policies. That guidance finally came Friday night, the deadline for colleges to comply with the letter, in the form of a nine-page frequently asked questions document.

Craig Trainor, acting assistant secretary for civil rights, said in a news release Friday that the FAQ would help institutions comply with Title VI of the Civil Rights Act of 1964, the equal protection clause of the Constitution and the U.S. Supreme Court decision against race-conscious admissions Students for Fair Admissions vs. Harvard.

“The Dear Colleague Letter is clear: The Trump Department of Education will not allow educational institutions that receive federal funds to discriminate on the basis of race,” Trainor wrote.

Some legal scholars argue that while the Dear Colleague letter was anything but clear—with its sweeping interpretation of the SFFA decision and its nebulous definition of DEI—the FAQ offers some much-needed insight and softens some of its harsher rhetoric. Others say that while the guidance is an improvement, it offers little solace as colleges continue to nix their DEI efforts.

The FAQ “is the least unhinged piece of work product that I’ve seen come out of the Trump administration” regarding DEI initiatives, said Jonathan Feingold, associate professor of law at Boston University’s law school. But “it’s been a low bar.”

What the FAQ Clarifies

Ray Li, who previously worked as an attorney in the Office for Civil Rights, said the tone of the FAQ differs radically from that of the Feb. 14 Dear Colleague letter.

“The Dear Colleague letter was a lot of rhetoric around DEI,” including “troubling language about how DEI is discriminatory … and there wasn’t really a defining of what DEI meant,” he said. The FAQ appears to be “a kind of a retrenchment back to legal principles. It’s much more grounded in legal analysis.”

He noted that the document sticks more closely to describing what’s in the SFFA decision, references familiar case law and, as is typical for the Office for Civil Rights, promises to “examine the facts and circumstances of each case.”

While the FAQ still contends that “many schools have advanced discriminatory policies and practices under the banner of ‘DEI’ initiatives,” it also says the label “DEI” doesn’t automatically make a program in violation of civil rights law.

Stacy Hawkins, a law professor at Rutgers University, said that’s a major clarification.

“I don’t think that message could at all have been reasonably inferred from the Dear Colleague letter,” she said. The letter “seemed to be unequivocal and much more categorical in saying, basically, everything you guys are doing is unlawful and you should stop.”

The new guidance suggests that what’s taught in the classroom won’t be targeted. It affirms that the Department of Education is prohibited from “exercising control over the content of school curricula” and the Dear Colleague letter can’t require or authorize education institutions to restrict First Amendment rights, like free speech.

The FAQ also clarifies that “programs focused on interests in particular cultures, heritages, and areas of the world” aren’t an issue if they’re open to all students. The same goes for “educational, cultural, or historical observances,” such as Black History Month celebrations. But the new guidance does double down on the OCR’s earlier stance that affinity group housing and graduation ceremonies constitute “segregation” and are therefore unlawful.

Jonathan Butcher, a senior fellow at the Heritage Foundation, a conservative think tank, praised the document as “consistent” with the Dear Colleague letter but furnishing more detail. As far as he’s concerned, the Trump administration hasn’t “declared war on diversity” but is simply “reinforcing the Civil Rights Act, which is entirely appropriate.”

“It’s not the term ‘DEI’ that’s the problem,” he said. “Does a DEI activity or program create a racial stereotyping? Or does it create harassment? Does it create segregation? Does it create discriminatory actions?”

Li pointed out that the FAQ document also lays out a traditional legal approach to assessing seemingly race-neutral policies for racial discrimination, and doesn’t mention the OCR’s earlier assertion that it’s unlawful for colleges to drop standardized test requirements.

He believes the document will be easier for higher ed lawyers to parse and interpret on behalf of institutions.

“It’s at least now at the point where folks are speaking the same language,” he said. “This is now in the realm of having disagreements on how specific case law is actually interpreted.”

What Remains Hazy

That said, the FAQ still leaves some questions unanswered.

While the new guidance suggests cultural events and programming are allowed, it also says institutions “must consider” whether any programming discourages members of all races from participating “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.”

Li believes what it means to encourage or discourage students from participating remains unclear.

For example, “If you have a group on campus called the Chinese Students Association, do you actively have to go out and try to, as a school, give that information to non-Chinese students?” Li said. Depending on what complaints are submitted to the OCR, “I could see that getting messy.”

The FAQ’s discussion of admissions essays also leaves legal scholars with questions. It acknowledges that the Supreme Court allows colleges to consider applicants’ “discussion of race” in essays but also argues that it’s illegal for colleges to mandate essays that “require applicants to disclose their race.” The document also calls out some colleges for “attempting to circumvent” the SFFA decision through their essay questions.

Hawkins said the section on essays is bound to cause confusion for colleges that pose diversity-related admissions questions to their applicants because they believe doing so is lawful.

“Is it permitted or not permitted?” she said. “They kind of say both at the same time.”

What Happens Next

Feingold believes the FAQ, while “certainly a de-escalation,” still intends to stoke “fear and anxiety among educators.”

He noted that the first question the document answers is how to report institutions’ alleged discriminatory conduct to the OCR.

The new guidance is still “clearly attempting to cultivate a narrative that overstates the actual scope of the [SFFA] opinion” and to “communicate threats … designed to obtain compliance,” he said. “It is still articulating a worldview that views racial integration, racial desegregation, as somehow inappropriate because it is attending to race,” which he believes is legally “dead wrong.”

Feingold, Hawkins and 36 other legal scholars signed a Feb. 20 memo emphasizing that DEI programs and practices targeted by the Dear Colleague letter and Trump’s executive orders are in fact lawful, and colleges shouldn’t be scrapping them in response.

The new guidance hasn’t changed their assessment. As far as Feingold is concerned, colleges shouldn’t have made any changes in response to the Dear Colleague letter, and they shouldn’t be making any changes now.

While he believes the FAQ takes a more moderate stance, he’s doubtful it’s going to mitigate any of the damage as colleges scramble to strip DEI language from their websites and review their programs and policies.

“Universities should hold the line and proudly champion their diversity, equity and inclusion initiatives and legally defend them because they’re the right thing to do, legally sound and critical to the university being able to actually realize its mission to pursue truth and knowledge for the common good,” Feingold said. And yet, “we continue to see universities roll back their legally sound, morally just and mission-critical diversity, equity, inclusion programs.”

Butcher, of the Heritage Foundation, said it will be helpful to see how the Office for Civil Rights actually implements what it’s laid out. Once complaints start coming in, it will clarify whether or not the FAQ in fact reflects a softened tone. He isn’t so sure.

“If there are those who speculate this is a step back or represents a softer approach, the truth will be in the implementation,” he said. “The truth will be in the examples that we see.”