Additional Guidance on DEI Programs Released

Two weeks after issuing controversial guidance on diversity, equity, and inclusion (DEI) programs, the Office for Civil Rights (OCR) at the Department of Education released an FAQ on racial preferences and stereotypes under Title VI of the Civil Rights Act. The new guidance, which appears to be based on a more traditional legal analysis than its predecessor, is intended to clarify some of the questions raised in response to the February 14 letter.

A lawsuit challenging the guidance has already been filed in court. Led by the National Education Association, the litigation seeks to halt the new FAQ, the February 14 guidance, and the new reporting portal that the Department established to encourage the public to file complaints of discrimination.  Of the three items challenged, the February 14 guidance is likely to be the most legally vulnerable.

Here are several key takeaways from the FAQs.

DEI Programs

Unlike the previous guidance, the FAQ appears to acknowledge that not all DEI programs are automatically unlawful. According to the guidance, Title VI violations “do not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion,’” but instead are evaluated based on the facts and circumstances of each case. So long as programs do not involve differential treatment on the basis of race, racial stereotyping, or a hostile environment, they will be considered lawful. The guidance specifically cites programs focused on “particular culture, heritages, and areas of the world” and “educational, cultural, or historical observances” as examples of programs that are acceptable as long as they are open to all and do not involve racial bias.

First Amendment

The FAQ clarifies that nothing in the guidance restricts the First Amendment rights of students, faculty, and staff at institutions of higher education. Nevertheless, the guidance states that certain practices, such as orientation programs or training sessions that involve racial stereotypes, could give rise to hostile environment claims.

Segregation

Likewise, the guidance addresses segregation based on race, noting that it is illegal. According to the guidance, “a school cannot engage in any programming, graduation ceremonies, housing, or other aspect of school life that allows one race but not another.” Although not explicitly addressed in the guidance, activities that are non-exclusive and open to all have traditionally been deemed legally permissible.

Students for Fair Admissions v. Harvard

The guidance contains several FAQs that address the Supreme Court’s decision in Students for Fair Admissions (SFFA)  v. Harvard. As the guidance notes, although the ruling addressed racial preferences in admissions, the logic of the ruling is almost certain to extend to other educational contexts where there is a “competitive process for a benefit at an educational institution,” such as admissions or financial aid. In other words, “a school may not legally take account of a student’s race in distributing those benefits or resources … because to advantage members of one race in a competitive or zero-sum process is necessarily to disadvantage those of a different race.”

In its discussion of the SFFA decision, OCR also briefly addresses application essays. Specifically, the guidance acknowledges that “schools can credit what is unique about the individual in overcoming adversity or hardship but never the person’s race” but states that essay prompts that require applicants to disclose their race are unlawful.

OCR Investigations

The guidance provides additional details about OCR’s investigation procedures, outlining the criteria that the agency uses to evaluate race-neutral preferences that may serve as a proxy for intentional race discrimination. While the original guidance stated that using such preferences is illegal, the FAQ takes a more nuanced view by describing the factors that OCR considers when evaluating whether or not such preferences are a form of covert discrimination motivated by discriminatory intent.

The guidance also outlines the steps that OCR will take if it determines a Title VI violation has occurred. Such steps continue to include an effort to reach a voluntary resolution agreement.

Finally, the guidance notes that institutions’ Title VI duty not to discriminate applies to conduct by third parties over whom they exercise some control.

For more information, please contact:
Jody Feder