Conceding DEIfeat: OCR Backtracks With New Guidance on Title VI

Conceding DEIfeat: OCR Backtracks With New Guidance on Title VI

On Saturday, March 1, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) released additional guidance on Title VI that brings its stance on race-conscious educational policies, practices, and programs more in line with traditional legal interpretations. The Q&A document followed two weeks of widespread  confusion  and  criticism  triggered by a Dear Colleague Letter (DCL) OCR issued a week before suggesting that Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment prohibit nearly any consideration of race or diversity in federally funded schools, colleges, and universities, a novel and untested legal theory. The DCL imposed a February 28 compliance deadline with no clear indication of OCR’s plan, if any, for enforcement, further fueling uncertainty. 

Instead of announcing enforcement actions against schools on the February 28 deadline, OCR issued its March 1 Q&A. The Q&A can be broken down into two main areas of concern: access to educational opportunities and the creation of a hostile environment based on race. While significant uncertainties remain, the updated guidance scales back many of the DCL’s more extreme interpretations. It provides clearer guardrails for institutions regarding policies and programs aimed at addressing racial homogeneity and ensuring individualized support for students from different backgrounds on campus. Although the Department’s February 27 launch of the “End DEI” portal—encouraging public reports against schools of suspected Title VI violations—signals that challenges to such programs are far from over, the Q&A offers much-needed clarity for educational leaders navigating which initiatives may pose legal risks and which are likely permissible. 

Read on for a breakdown of the significant differences between the Q&A and the DCL, along with key takeaways for how to apply the new guidance at your institution. For more information and to feel more comfortable about your institution's compliance with these challenges, join me for a training on Title VI for educational leaders on Friday, March 21, 2025 from 1 p.m. to 4 p.m. Central/2 p.m. to 5 p.m. Eastern.

Summary of Differences Between the DCL and the Q&A

The February 14 DCL suggested that schools could not consider race or diversity in any way—even when pursuing race-neutral policies aimed at limiting racial homogeneity or improving student or employee success. It also implied that many race-related programs and discussions, like “DEI” initiatives, inherently create hostile environments under Title VI, making them legally suspect. 

The March 1 Q&A scales back many of these extreme interpretations, recognizing that schools can still pursue broader goals related to representation and student support, provided they do not restrict access based on race or create race-based hostility.

Admissions and Access to Educational Opportunities 

The Q&A, like the DCL, builds on the 2023 U.S. Supreme Court case Students for Fair Admissions v. Harvard (SFFA), which effectively prohibited postsecondary institutions from considering race as a plus factor in admissions. Both guidance documents extend SFFA’s reasoning to all areas of education programs and activities, including admissions, financial aid, scholarships, discipline, housing, graduation ceremonies, and employment.

The February 14 DCL took an aggressive stance on admissions and other access-related policies, stating that schools cannot consider “nebulous concepts like … diversity” in admissions and cannot make any policy changes—such as eliminating standardized tests or using personal statements—if the intent is to increase racial diversity. Scholars and experts pointed out that this prohibition went well beyond the Supreme Court’s holding in SFFA, the very case on which the DCL was based.

The March 1 Q&A significantly narrowed that interpretation. Like the DCL, it states that schools cannot use a person’s race as a direct “plus” or “minus” in admissions or other access decisions, as favoring one racial group inherently disadvantages others. However, unlike the DCL, the Q&A does not categorically prohibit efforts to achieve broad racial representation in admissions or other policies governing access to programs and activities. Instead, it clarifies that such policies are not necessarily unlawful, even if they have a foreseeable impact on certain groups (e.g., white or Asian students) unless there is clear evidence that they were designed with the intent to advantage or disadvantage racial groups.

Regarding facially neutral policies with a discriminatory intent, the Q&A builds on claims in the DCL, asserting that some schools and universities have attempted to circumvent SFFA by crafting essay prompts that compel applicants to disclose their race or by conducting brief interviews to visually assess race before making admissions decisions. The implication is that those actions are intended to identify an applicant’s race and use that information to influence the admissions decision. Unlike the DCL, however, the Q&A acknowledges that such practices are not always unlawful. It states that it will consider “[a] school’s history and stated policy of using racial classifications and race-based policies to further DEI objectives, ‘equity,’ a racially-oriented vision of social justice, or similar goals,” but recognizes that that factor alone is not necessarily sufficient to establish discriminatory intent—OCR must evaluate all available evidence collectively to determine whether there is enough to support a finding of intentional discrimination. The implication is that there will need to be sufficient evidence that the intent of the program was to harm members of a racial group, not just to increase representation within the community more generally.

Regarding policies, practices, and programs beyond admissions, the DCL took a strict stance, suggesting that schools could not offer race-based affinity spaces, culturally specific housing, or graduation ceremonies focused on certain racial or ethnic traditions—even if they were open to all students. The Q&A takes a more measured approach, stating that schools “cannot engage in any programming, graduation ceremonies, housing, or other aspect of school life that allows one race but not another or otherwise separates students, faculty, or staff based on race.” That suggests that programs open to all participants, regardless of race, are likely permissible. By the same logic, targeted outreach and recruitment efforts aimed at reaching members of underrepresented racial groups may be defensible as long as all candidates at those events can access the recruitment opportunities, regardless of race.

Key Takeaways From the Q&A: Admissions and Access 

• Consider racial representation in a population carefully. Schools can likely take racial representation into account when evaluating admissions and other policies and practices that govern access to programs and activities, as long as race is not a factor in decisions, there is no intent to benefit or disadvantage a particular racial group, and all opportunities remain open to everyone, regardless of race.
• Use a race-neutral approach in admissions and access policies. Schools should not use race as a plus or minus factor in deciding who is admitted or can access a program or services. Considering an applicant’s individual experiences with adversity, including those linked to race, is likely appropriate as long as the factors addressed in the previous bullet point are met. Students should never be segregated by race for presentations, discussions, or other events or activities.
• Be mindful in crafting personal statement and essay prompts. Schools may wish to avoid requiring applicants to disclose their race or designing prompts that intentionally elicit racial identification. Instead, prompts could focus on personal experiences, challenges, and achievements without directing or nudging students to discuss race explicitly. Where race is disclosed, it should not be considered in the admission or access decision; instead, focus on the prompt (e.g., did the student overall exhibit that they overcame adversity in life). 
• Expand outreach and recruitment efforts thoughtfully. Schools likely can continue using strategies such as visiting locations where they are more likely to engage with individuals from underrepresented racial groups to expand and diversify applicant pools. However, all recruitment opportunities should remain open to everyone, and no individual should be denied or discouraged from applying or accessing recruitment benefits based on race.
• Use socioeconomic and other non-race-based criteria for financial aid and support programs. Schools likely can continue structuring scholarships, grants, and student support services to address financial and educational barriers even if race is linked to those barriers, as long as eligibility is not based on race.

Harassment and Hostile Environments

The Q&A also walks back OCR’s position in the DCL on race-related programming or activities, including those categorized as “DEI” initiatives, “culturally responsive” teaching, and “social emotional learning.” The DCL took an aggressive stance against all DEI-related initiatives, saying that schools cannot “use[ ] race as a factor in … training[ ] and other institutional programming” and suggesting that all DEI programming is inherently suspect under Title VI. The Q&A recognizes that schools may continue cultural programming and discussions on race-related topics, provided they do not limit access (considering the factors discussed in the previous sections) or create a hostile environment. 

Under Title VI, hostile environment harassment is unwelcome conduct based on race, color, or national origin that is objectively offensive and so severe or pervasive that it effectively denies equal access to the institution’s education program or activity. The Q&A offers the following examples of programs that OCR believes could create a hostile environment:

• Requiring students to participate in privilege walks that categorize them by race or perceived privilege
• Pressuring students to engage in political activism by mandating participation in protests or requiring adherence to specific viewpoints on race-related issues
• Investigating or disciplining students for dissenting views on race-related topics through DEI offices or similar university structures
• Mandating trainings, orientations, or courses that reinforce racial stereotypes
• Assigning coursework that requires students to identify themselves by race or complete tasks differentiated by race
• Using “bias response teams,” mandatory training, or compelled statements to discipline or sanction students for speech protected under the First Amendment, and
• Applying disciplinary measures differently based on race by excusing misconduct for one racial group while sanctioning the same behavior for another.

Although reasonable minds may disagree on the analysis of these examples under the hostile environment standard, they provide insight into how schools, colleges, and universities can evaluate whether their programming risks violating Title VI under current OCR interpretations.

Key Takeaways From the Q&A: Harassment and Hostile Environments

• OCR has moderated its stance on race-related programming. While the DCL took an aggressive approach, suggesting all DEI-related initiatives were legally suspect, the Q&A clarifies that schools can continue programming that addresses race as long as it does not treat individuals differently based on race or create a hostile environment for participants.
• Institutions should carefully evaluate their race-related programming in light of OCR’s evolving interpretations. While some of the examples OCR provides may be debated legally, they offer insight into what OCR considers legally risky under Title VI.

What Schools, Colleges, and Universities Should Do Now

To stay in compliance, schools should review their policies, procedures, and practices, including those involving admissions and access to programs and activities and programming or curricula involving racial issues, to consider whether they create risk under Title VI. To request an estimate for an audit of your institution’s policies and procedures, contact me at jackie@educationcivilrights.com. It is also more important than ever to train educational leaders for your institution on Title VI to ensure consistent understanding and enforcement. To feel more confident with the requirements on your institution under Title VI, join me for a training for educational leaders on Friday, March 21, 2025 from 1 p.m. to 4 p.m. Central/2 p.m. to 5 p.m. Eastern. Register here.

The good news is that schools now have some clarity that they can continue efforts to foster broad representation and inclusive learning environments, but they must do so without treating students differently based on race. Institutions that rushed to comply with the DCL by cutting programs may wish to reassess whether those actions were necessary in light of the March 1 Q&A.