OCR Issues “Dear Colleague” Letter on Racial Discrimination

On February 14, 2025, the United States Department of Education, Office for Civil Rights (OCR) issued guidance clarifying how the Department will interpret federal laws that prohibit schools and other entities receiving federal funding from discriminating based on race.

As the “Dear Colleague” letter acknowledges, it is well established that discrimination on the basis of race, color, or national origin is illegal.  The letter also states that it “explains and reiterates existing legal requirements” under federal law and “does not bind the public or create new legal standards.”

What the Guidance Says

The letter begins by asserting that, in recent years, American schools have routinely embraced discriminatory practices—such as race-based admissions and hiring preferences and racially segregated graduation ceremonies and housing programs—and indoctrinated students by teaching that the United States is built upon systemic and structural racism. This language echoes the January 29, 2025 executive order that claimed K-12 schools are advancing “subversive, harmful, and false ideologies” that treat students as members of preferred or disfavored groups rather than as individuals. The letter further suggests that this way of thinking has become embedded in less direct ways under the guise of diversity, equity, and inclusion (“DEI”) programing.

From there, the letter pivots to its legal argument. Citing the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, it asserts that “race-based decision making, no matter the form, remains impermissible.”  The letter elaborates (emphasis ours):

At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using 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. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

Turning back to the issue of DEI programs, the letter states that programs that establish a preference or stigmatize based on race “deny students the ability to participate fully in the life of a school.”

Finally, the letter announces the Department’s intention to begin assessing compliance within fourteen days. It also advises educational institutions to “(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party institutions in an effort to circumvent prohibited uses of race.” Institutions that fail to comply are warned that they may face the loss of federal funding.

What It Means for Schools

Although the letter maintains that it is simply “reaffirming” existing obligations, the letter telegraphs that this Department views those obligations differently than the previous administration. Nonetheless, the letter acknowledges that it does not have the force of law or create new legal standards.

In addition, although the letter is critical of DEI initiatives in the educational setting, it focuses on the impermissible use of race and race-based decision-making by schools that receive federal funding. Those are very different issues than whether curriculum materials impermissibly reflect DEI-related principles, a topic that is more directly addressed in the January 29 executive order, which we previously discussed here.  Indeed, the “ending indoctrination strategy” required within ninety days of that order may impose restrictions on curriculum or instructional content as a condition to remain eligible for federal funding, but as we noted previously, we expect that there will be continuing legal developments and challenges in this area.

For now, in response to the recent OCR guidance, educational institutions should direct their focus toward understanding and complying with legal prohibitions against racial preferences.  To that end, we recommend that schools and school districts continue to review their existing policies—particularly those that highlight diversity, equity, and inclusion as goals or could be perceived as conditioning educational benefits or opportunities upon a student’s race or ethnicity—to ensure that they do not engage in any discriminatory practices. As we await further federal and state guidance, we also encourage school and district officials to consult legal counsel with any questions.