The U.S. Department of Education issued a "Dear Colleague" letter on Friday that threatens to withhold federal funds from schools that fail to comply with the Trump Administration's view of equal protection.
The move is significant, because it seems to expand what the Supreme Court has previously considered a violation of equal protection, and threatens to withhold federal funding for schools that the Administration deems in violation.
As to equal protection: The letter says that the Court's ruling in SFFA v. Harvard (2023), the case in which the Court struck higher-education affirmative action, applies beyond schools' admissions programs to all programming:
Although SFFA addressed admissions decisions, the Supreme Court's holding applies more broadly. 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 education 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.
The letter then also took aim at race-neutral programs that, upon "a closer look . . . are, in fact, motivated by racial considerations." (Citing Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1977).)
Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one. It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase diversity.
The letter also called out "DEI programs."
As to withholding federal funding: The letter says that the Administration will "take appropriate measures to assess compliance" within 14 days, "including antidiscrimination requirements that are a condition of receiving federal funding." It says that schools that the Administration deems in violation could "face potential loss of federal funding."
The letter invites "[a]nyone who believes that a covered entity has unlawfully discriminated [to] file a complaint with [the DOE Office of Civil Rights]," and provides a link to OCR's complaint page.