UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTS ‘THE ACTING ASSISTANT SECRETARY February 14, 2025 Dear Colleague: Discrimination on the basis of race, color, or national origin is illegal and morally reprehensible. Accordingly, I write to clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the United States Department of Education (Department)! This letter explains and reiterates existing legal requirements under Title VI of the Civil Rights Act of 1964,? the Equal Protection Clause of the United States Constitution, and other relevant authorities.® In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low-income families. These institutions’ embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia, For example, colleges, universities, and K-12 schools have routinely used race asa factor in admissions, financial aid, hiring, training, and other institutional programming. In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities. 1 Throughout this letter, “school” is used generally to refer to preschool, elementary, secondary, ‘and postsecondary educational institutions that receive federal financial assistance from the Department. 2 Title VI provides that: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 20004, et seg.; 34 CER. § 100, et seg. 3 This document provides significant guidance under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25, 2007), This guidance does not have the force and effect of law and does not bind the public or create new legal standards. This document is designed to provide clarity to the public regarding existing legal requirements under Title VI, the Equal Protection Clause, and other federal civil rights and constitutional law principles. If you are interested in commenting on this guidance, please email your comment to [email protected] or write to the following address: Office for Civil Rights, US. Department of Education, 400 Maryland Avenue, $.W., Washington, D.C. 20202. For further information about the Department's guidance processes, please visit the Department's webpage here. 400 MARYLAND AVE. 8.W., WASHINGTON, DC 20202-1100 word gov ‘The Department of Bdveation's miesion i lo promote student achievement and preparation for global competitiveness by fosteringPage 2 Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the ‘banner of “diversity, equity, and inclusion” (‘DET’), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline. But under any banner, discrimination on the basis of race, color, or national origin is, has been, and will continue to be illegal. ‘The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard* (SFFA), which clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VL. The Court explained that “{cJlassifying and assigning students based on their race” is lawful only if it satisfies “strict scrutiny,” which means that any use of race must be narrowly tailored—that is, “necessary’—to achieve a compelling interest.6 To date, the Supreme Court has recognized only two interests as compelling in the context of race-based action: (1) “remediating specific, identified instances of past discrimination that violated the Constitution or a statute”; and (2) “avoiding imminent and serious risks to human safety in prisons, such as a race riot.”* Nebulous concepts like racial balancing and diversity are not compelling interests. As the Court explained in SFFA, “an individual's race may never be used against him” and “may not operate as a stereotype” in governmental decision-making.” 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 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. Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations. And race-based decision-makin, no matter the form, remains impermissible. For example, a school may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a « Students for Fair Admissions, Ine. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2028). © Id. at 207. “Ibid, 71d, at 218, * Village of Arlington Heights v, Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).Page 8 means of determining or predicting a student's race and favoring or disfavoring such students.® 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 racial diversity. Other programs discriminate in less direct, but equally insidious, ways. DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school. ‘The Department will no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation’s educational institutions. The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent. All students are entitled to a school environment free from discrimination, The Department is committed to ensuring those principles are a reality. ‘This letter provides notice of the Department's existing interpretation of federal law. Additional legal guidance will follow in due course, The Department will vigorously enforce the law on equal terms as to all preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies, that receive financial assistance. ‘The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter Deginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding. All educational institutions are advised 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 (8) cease alll reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race. * Students for Fair Admissions, 600 U.S. at 230 ("[U]niversities may not simply establish through application essays or other means the regime we hold unlawful today.”).“Page 4 Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding. Anyone who believes that a covered entity has unlawfully discriminated may file a complaint with OCR. Information about filing a complaint with OCR, including a link to the online complaint form, is available here. ‘Thank you in advance for your commitment to providing our Nation’s students with an educational environment that is free of race, color, or national origin discrimination. Sincerely, Isf Craig Trainor Acting Assistant Secretary for Civil Rights United States Department of EducationLegal/Policy Update Recommended Review of Policies due to Recent Federal Communications ‘Based on recent action at the federal evel, the North Carolina School Boards Association encourages individual school systems to review their local policies to determine if any polices, regulations or processes need to be modified to comply with directives of the new administration. Below are policies that we recommend each local board review with your board attorney to ensure compliance with legal standards and guidance, Your board may have additional policies and regulations that also should be reviewed. The recommendations are divided into two parts: (1) Policies that reference the terms “diversity” and/or “equity,” and (2) Policies that reference “gender identity.” Pe eeu CR ce ee red rae Ina Deor Colleague letter issued on February 14, 2025, the U.S. Department of Education warned that “treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, socal justice, or equity is illegal.” The letter advised all educational institutions to “ensure that their policies and actions comply with existing civil rights law and “cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends” Under the threat of potentially losing federal funding. In addition, recent messaging from President ‘Trump and actions taken at federal agencies raise concerns that any initiatives that could be perceived to be DEI (diversity, equity, and inclusion), or even just the use of terms ike “diversity” or “equity” in policy, may trigger U.S. Department of Education scrutiny that could potentially result in withholding of federal funds to local boards. Priority Policies for Review Related to Diversity and/or Equity Policy 3130, Grouping for instruction | This policy states that heterogeneous grouping usualy is the best means of meeting the educational goals ofthe board but ‘acknowledges that homogeneous grouping may be necessary at times. The policy then says, “if homogeneous grouping materially affects diversity, the person proposing such grouping ‘must demonstrate that the benefits of homogenous grouping clearly outweigh the benefits of meeting the board's educational goals of diversity.”Policy 4150, School Assignment “The section of this policy about admission to magnet schools or other schools of choice lists “maintaining a socioeconomic, ‘geographic, and student achievement diversity that is. reasonably reflective of the school system as a whole” as a criterion that will be taken into account when making admission decisions. Policy 5150, Reporting to External Agencies Consistent with state law, this policy states that the following information will be provided to the Department of ‘Administration: (1) all egally required reports regarding contract bids and contract purchases of goods and services {rom historically underutilized businesses, disabled business ‘enterprises, and nonprofit work centers for the blind and the severely disabled (see policy 6402, Participation by Historically Underutilized Businesses); and (2) all legally required reports regarding the use of minority businesses in construction work (see policy 9125, Participation by Minority Businesses). Policy 6402, Participation by Historically Underutiized Businesses ‘The information in the policy is rooted in state law, and the policy clearly states that the board will purchase goods and services without regard to race, color, creed, national origin, ‘ex, ge, disability, or religion. This policy encourages Participation of historically underutilized businesses (those ‘owned and operated by Black, Hispanic, Asian American, American Indian, female, disabled, or socially and economically «disadvantaged individuals) and small businesses in the school system's purchase of goods and services and sets an aspirational goal for the percentage of the total annual value of ‘the school system's purchases to come from contracts with such businesses. The policy also establishes guidelines to ensure that the school system will make good faith efforts to reach diverse suppliers of goods and services and to encourage Participation in the school system’s purchasing program by ‘such suppliers. Policy 7100, Recruitment and Selection of Personnel ‘After stating thatthe board will provide equal employment ‘opportunities and employment benefits and will evaluate al job ‘candidates on their merits and qualifications for positions, this policy then says, “The board also is committed to diversity throughout the programs and practices of the school system, ‘To further this goal, the recruitment and employment program should be designed to encourage a diverse pool of qualified applicants.” Policy 9115, Prequalification of Bidders for Construction Projects ‘his policy requires that the prequalification application for bidders on construction projects provides for firms to give their MWSBE (Minority, Women, Small Business Enterprise) status. Policy 9120, Bidding for Construction Work This policy includes a requirement that the superintendent centfy that good faith efforts have been made to increase the Participation in construction contracts by minority-owned and female-owned businesses, as required by policy 9125, Participation by Minority Businesses.Policy 9125, Participation by Minority Businesses “The information in the policy is required by state law, and the policy clearly states that the board will award building contracts ‘without regard to race, religion, color, creed, national origin, ‘sex, age, or disability. This policy encourages the participation ‘of minority businesses (those owned and operated by African- ‘Americans, those of Hispanic descent, Asian Americans, ‘American Indians, females, or socially and economically xdvantaged individuals) in the school system's building ‘construction contracts and, as required by state law, sets aspirational goals forthe percentage of participation by ‘minority businesses in the total value of work for each building, project. The policy also describes the good faith efforts to be made to reach diverse contractors and to encourage participation in the school system's construction contracts by such contractors. “equity/inequity/equitable.” ‘Additional Policies for Review: The following policies use the terms “diversity” or Policy 2302, Remote Participation in Board Meetings This poliey says, "The board acknowledges that attendance at board meetings is essential for ts members to perform their official duties and to add to the diversity of thought and opinion inthe board's deliberations.” Policy 3000, Goals and Objectives of the Educational Program This policy says that the "board believes that the administrators Cf the educational program must strive to provide each student with the opportunity to” and then lists 12 items, one of which is “foster respect and appreciation for cultural and ideological diversity and differences.” The policy does not go into any further detail regarding that statement. Policy 3100, Curriculum Development In the opening paragraph, the poli recognizes that curriculum development must be an ongoing process in order to address continually the changing needs and diversity of all students and to fulfill the educational goals of the board.” The process for curriculum development then described in the policy does not address any specifics related to diversity. states, “The board Policy 3200, Selection of Instructional Materials In the opening paragraph the policy says, “instructional materials should be representative ofthe rich diversity of our nation and appropriate for the maturity levels and abilities of the students.” Among the list of objectives for the selection of supplementary materials are “to provide a wide range of ‘materials that will enrich and support the curriculum, taking into consideration the individual needs and varied interests, abilities, socio-economic backgrounds, learning styles and developmental levels of the students served,” “to provide resources representing various points of view on controversial Issues so that students as young citizens may develop, under guidance, the skils of critical thinking and critical analysis,” andto provide resources representative of the many religious, ‘ethnic and cultural groups in our nation and the contributions, ‘of these groups to our American heritage.” Policy 4140, Foreign Exchange Students The beginning of the policy says, “The board embraces the cultural diversity that foreign exchange students bring to the school system. Foreign exchange students expose the schoo! ‘community to new perspectives and customs, facilitate cross- cultural understanding, and prepare all students for a future With increasing global interconnectivity.” Policy 4303, Fair and Consistent Discipline Administration | Policy 4310, integrity and Civility This policy provides for monitoring of the administration of the board's discipline policies to determine whether disciplinary and other behavior management practices are affecting groups of students disproportionately and, iso, whether the disproportionality results from inconsistencies in the pplication of discipline to similar offenses. The last section is titled "Professional Development to Support Equitable Disciplinary Practices” and states, “The superintendent shall provide a program of professional development that prepares employees to apply school discipline policies and practices in a fair and equitable manner so as not to disproportionately impact students of color, students with disabilities, English Language Learners, or other groups of students on the basis of their personal characteristics” ‘The opening paragraph says that the board has an educational objective “for students to respect cultural diversity and ‘ideological differences.” The policy then goes on to set student integrity and civility standards, none of which specifically address diversity or ideological differences Policy S010, Parent Organizations This policy lists “consider the cultural diversity and economic differences of students and parents in planning school-related functions” as a condition for parent organizations to operate in | conjunction withthe schools. The policy does not go into any further detail regarding that statement. Policy 7130, Licensure ‘This policy contains a section titled “Equitable Distribution of Teachers" which says, “The superintendent shall assess whether low-income, minority, learning disabled, and/or English learners are being taught by inexperienced, ineffective, ‘or out-ofield teachers at higher rates than students who do ‘ot fll into these categories and shall develop a plan to ‘address any such disparities. If DPI does not require such a plan fof the LEA, the superintendent isnot required to develop a plan under this subsection unless he or she determines that one is ‘needed to address inequities within the school system.” Asis. explained in a footnote, 20 U.S.C. 6312(b}(2) requires LEAs to address any identified disparities in the LEA's plan for Title | compliance. Historically, DPI has required LEAs to submit an equity plan with their application for improving Teacher Quality Title, PartA (PRC 303) funds.Policy 7360/8225, Crowdfunding on | This policy grants the principal and superintendent the Behalf ofthe School System authority to deny a proposed crowdfunding campaign if “the proposed campaign would produce unacceptable inequity in the educational environment.” Policy T360/8225-ALT, Crowdfunding on | This policy recognizes that crowdfunding can “produce Behalf ofthe School System unacceptable inequity in the educational environment.” Policy 8220, Gifts and Bequests The policy says, “In determining the suitability of a donation intended to benefit any program that is appropriately segregated by gender, such as a school athletic program, the superintendent must consider equity and Title IX issues in relation to overall funding and opportunities for participation.” Te uteeO UU Suo ke fe CCR Ra Cum President Trump's Executive Order 14168, Defending Women from Gender ideology Extremism ond Restoring Biological Truth to the Federol Government, Jan. 20, 2025, ordered federal agencies to “enforce all sex-protectve laws to promote [the] reality” that there are “two sexes, male and female,” and that “[t}hese sexes are not changeable and are grounded in fundamental and incontrovertible reality.” (See also, President Trump's Executive Orders Ending Radical indoctrination in K-12 Schooling Jan. 29, 2025, and Keeping Men Out of Women’s Sports, Feb. S, 2025,) The US. Department of Education and Office for Civil Rights will be enforcing Title X consistent with President Trump's Executive Order (see the U.S. Department of Education’s Deor Colleague letter issued Feb. 4, 2025}. ‘There are legal concerns that the positions taken by the current administration conflict with federal caselaw holding that protection against sex discrimination under certain federal laws includes protection ‘against diserimination based on gender identity. Priority Policies for Review Related to Gender Identity otcy 1720/4030/7935, Te ] This policy prohibits discrimination “on the bass of sex Nondlscrimination on the Basis of Sex | (including on the bass of sex stereotypes sex characteristics, pregnancy or related conditions sexual orientation, or gender 'dentity” as required by Title 1X ofthe Educational Amendments Act of 1972. The language inthe parenthetical describing whats covered under the term "sex" for Title IK purposes aligns with caselaw in our jurisdiction. However, the Us Department of Education has taken the positon that sex does not cover gender identity for Tite IX purposes. Local boards should work with thei board attorneys to determine | what constitutes ‘onthe basis of sex" for Tite IX purposes. | Policy 6770, Operation of School This policy says tat inthe operation ofthe schoo! nutrition Nutrition Services services program, schoo officials may nat discriminate based on ‘sex including pregnancy, childbirth, sexual orientation, and‘gender identity)” The parenthetical was added in 2022 in response to a memo issued by the U.S. Department of Agriculture's Food and Nutrition Service Civil Rights Division However, the memo was recently removed from the US. Department of Agriculture's website and presumably rescinded. Policy 7100, Recruitment and Selection of Personnel This policy says the board will provide equal employment ‘opportunities and employment benefits without regard to “sex {including pregnancy, childbirth, sexual orientation, and gender ‘identty).” Gender identity i included inthe parentheses bbecause in 2020, the U.S. Supreme Court held that an employer, who fires an employee for being gay or transgender violates Title Vi of the Civil Rights Act of 1964. (Bostock v. Clayton County, $90 U.S. 644, 140°, Ct. 1731 (2020)) ‘Additional Policies for Information: Thi 1 following policies include the terms “gender identity.” Policy 1310/4002, Parental involvement This policy restricts instruction on gender identity, sexual activity, oF sexuality as required by the N.C. Parents’ Bill of Rights. Policy 3540, Comprehensive Health Education Program This policy restricts instruction on gender identity, sexual activity, oF sexuality as required by the N.C. Parents’ Bill of Rights. Policy 4329/7311, Bullying and Harassing Behavior Prohibited 4s specified in N.C. G.S. 115C407.15,, this policy Inudes in the | definition of bullying or harassing behavior, conduct motivated by enumerated personal characteristics, including gender identity. Policy 5240, Advertsing n the Schools This policy prohibits advertising on school property, at school events, or through school publications or media that contains libelous statements, personal attacks, or abusive language, such as language defaming a person's sex, including pregnancy, childbirth, sexual orientation, and gender identi