As colleges and universities are scrambling for answers in response to the Department of Education’s “Dear Colleague Letter” prohibiting DEI programming, the agency now aims to provide guidance with a new “Frequently Asked Questions” document.
Since Feb. 14, when the letter was released, numerous colleges and school districts voiced concern over the new rules, stating that legal counsel would be taken to better understand how to provide equitable instruction without violating federal law.
Over the weekend, the Education Department published a new FAQ providing detailed information about the rules outlined in the letter. It answers questions like:
- Can schools separate students by race or encourage students to self-separate by race?
- Are diversity, equity and inclusion programs unlawful under Students for Fair Admissions v. Harvard?
- As part of their admissions process, may schools include application essay prompts that invite discussions of race?
“The ‘Dear Colleague Letter’ is clear: The Trump Department of Education will not allow educational institutions that receive federal funds to discriminate on the basis of race,” Craig Trainor, acting assistant secretary for Civil Rights, said in a public statement. “These FAQs will facilitate compliance with Title VI of the Civil Rights Act of 1964, the Equal Protection Clause and Students for Fair Admissions vs. Harvard.”
At the moment, the FAQ includes answers to 15 questions and will include updates as more questions arise. For now, let’s take a look at the Education Department’s response to the three previously listed questions.
Can schools separate students by race or encourage students to self-separate by race?
Answer: “Segregation is illegal,” the document reads. “Therefore, school-sponsored or school-endorsed racially segregated aspects of student, academic, and campus life, such as programming, graduation ceremonies and housing, are legally indefensible under the same ‘separate but equal’ rationale that the Court rejected in Brown.”
Are diversity, equity and inclusion programs unlawful under Students for Fair Admissions v. Harvard?
Answer: Schools cannot discriminate based on race, color or national origin in their programs or activities, according to the FAQ. For instance, schools with programs focused on interests in specific cultures, heritages and areas of the world would not violate Title VI, assuming they’re open to all students regardless of race. However, schools must consider whether programming discourages members of all races from attending, “either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do not participate,” the document reads.
As part of their admissions process, may schools include application essay prompts that invite discussions of race?
Answer: Students for Fair Admissions v. Harvard decided that race-based admissions policies that fail strict scrutiny are illegal. However, it also stated that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
The FAQ cautions schools crafting essay prompts that require applicants to disclose their race, stating that colleges would be illegally attempting “to do indirectly what cannot be done directly, as are admissions policies that hold brief interviews in order to visually assess an applicant’s race.”
For more information, read the FAQ here.
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