You have /5 articles left.
Sign up for a free account or log in.
Higher education groups including the American Council on Education, EdTrust and the American Association of University Professors are urging colleges and universities to stay calm and not overreact to the latest guidance issued by the Education Department’s Office for Civil Rights late Friday.
The Dear Colleague letter, signed by Craig Trainor, the office’s acting assistant secretary, outlined a sweeping interpretation of the Supreme Court’s 2023 ruling in Students for Fair Admissions v. Harvard, which struck down affirmative action in admissions. The new letter declared all race-conscious student programming, resources and financial aid illegal and threatened to investigate and rescind federal funding for any institution that does not comply within 14 days.
But policy experts have been quick to assure institutions that the letter does not hold the same power as legislation, a court ruling or even executive regulations.
“To be abundantly clear, Dear Colleague letters are not law. They are simply statements of intent by executive agencies about how they intend to interpret the law,” Ted Mitchell, president of ACE, told an audience of nearly 5,000 stakeholders who tuned in to an ACE live policy briefing Tuesday. “And so overcompliance, anticipatory compliance, pre-emptive compliance, is not a strategy. The strategy needs to be much more considered, much more nuanced,” he added.
A footnote within the letter affirms this, saying, “This guidance does not have the force and effect of law and does not bind the public or create new legal standards.”
ACE leaders also noted that even if colleges attempted to scrub all race- or ethnicity-based programming, affinity groups and scholarships, it would be impossible to do so in such a short time frame.
“The idea that every institution in this country could meaningfully come into compliance with this interpretation, even if they wanted to, even if they should … is just ridiculous. It would be impossible for most institutions, let alone all institutions to comply,” Jon Fansmith, ACE’s senior vice president for government relations and national engagement, said on the same call.
Fansmith went on to explain that colleges can “absolutely” lose federal funding if they are violating civil rights obligations. But the investigation process legally required to strip an institution of those funds is long, tenuous, involves multiple opportunities for reconciliation and can involve the court system.
As a result, he said, the 14-day window for compliance is essentially arbitrary, and the sole purpose behind this sweeping, vague and unprecedented letter is “to sow chaos” and “create fear.”
“The goal is to incentivize action, even where a more careful parsing of your legal obligations would indicate otherwise,” Fansmith emphasized.
Other organizations have also chimed in. The AAUP more brashly described the Education Department’s letter as one that “declared war on American civil rights.” EdTrust said the letter is “a perversion of the Civil Rights Act.”
“In other words, the same law that was designed to protect students of color and other under-represented populations and ensure their basic rights is instead being weaponized against the very programs and investments designed to support those students to overcome a legacy of discrimination and aid their academic and economic progress,” Eric Duncan, the latter group’s director of pre-K-12 policy and educator diversity, said in a statement.
Similar to ACE, AAUP advised education institutions “to collectively stand up and defend what higher education is and does.” EdTrust encouraged them to “not be deterred by inflammatory language and threats to funding.”
