On February 14, 2025, the Department of Education’s Acting Assistant Secretary for Civil Rights released a letter clarifying and reaffirming the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the Department. Specifically, the letter addressed the Title VI prohibition of discrimination on the basis of race, color, or national origin in light of the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard. The letter states that pursuant to Students for Fair Admissions, classifying and assigning students based on race is only lawful if it satisfies strict scrutiny, meaning it must be narrowly tailored—i.e., necessary—to achieve a compelling interest. The letter states that “diversity,” recognized in earlier Supreme Court decisions as a compelling interest in educational settings, as well as “social justice” and “equity,” are not compelling interests.
The letter that the Department interprets the Court’s opinion to prohibit the use of 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 letter admonishes schools against using students’ personal essays, writing samples, participation in extracurricular, or other cues as a means of determining a student’s race and favoring or disfavoring such students, as well as against using non-racial information as a proxy for race.
The Department announced its intent to enforce the law on equal terms as to all preschool, elementary, secondary, and post-secondary educational institutions, as well as state educational agencies, that receive financial assistance. The Department will begin applying the policy set forth in the letter to its enforcement of statutes and regulations on February 28, 2025.
The letter advises all Department funding recipients to review their policies consistent with the letter, as well as to cease efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends, or by relying on third-party contractors to do so.
It is not clear how, or if, the Dear Colleague Letter will affect California community colleges. Initially, we note that this is a Dear Colleague Letter and, as the document itself states in footnote 3, it is guidance that “does not have the force and effect of law and does not bind the public or create new legal standards.” Accordingly, the Letter does not supersede state law. In California, efforts to increase diversity must comply with California Constitution, Article I, Section 31, which prohibits colleges from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.
The Dear Colleague letter appears to focus on programs with students, however, Title VI prohibits discrimination against anyone in a program which receives federal assistance. (42 U.S.C. 2000d-1, 2000d-3.) With respect to employment, districts are required to comply with Section 31, and thus Title VI. Pursuant to the Education Code, districts must prepare an Equal Employment Opportunity Plan (“EEO”), a local document that identifies ways the District can increase the diversity of the workforce. The plan describes how the District will provide recruitment strategies, training, and data analysis to increase diversity based on many protected categories, not just race, sex, color, ethnicity, or national origin. It does not grant a preference to or unequal treatment against any applicant or employee in any employment decision based on race, sex, color, ethnicity, or national origin.
All community college districts admit any students who apply and thus, do not discriminate on any protected activity. Districts do provide support programs that are generally needs based. The districts’ programs likely help students of color at higher rates, and it is possible an OCR investigator could argue that these programs are a proxy for race. Examples of these programs are:
While the above programs likely help students of color and other underrepresented backgrounds, they are needs based and open to all students without consideration of any protected category. They do not provide preferential or unequal treatment based on race, sex, color, ethnicity, or national origin.
If an individual makes a complaint to the Office for Civil Rights (“OCR”), there is a process for determining the validity to the allegation and how it is resolved. OCR first evaluates the complaint and determines whether to investigate. If OCR investigates and believes that a District violated Title VI, it will seek to obtain a resolution with the district. Districts can also seek mediation. If the OCR seeks to withdraw funds due to a finding against a district that cannot be corrected by informal resolution, it must follow the Code of Federal Regulations in doing so. (34 C.F.R. § 108.8.) 100.8 Procedure for effecting compliance. The regulations require the OCR to advise the district of its failure to comply and has determined that compliance cannot be secured by voluntary means, and “there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by” Title VI. The hearing is an evidentiary hearing and is subject to judicial review. (34 C.F.R. §§ 100.9, 100.10.)
If your institution needs assistance with interpreting and complying with the Executive Orders and other material issued to Colleges, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.