Overview
On February 28, 2025, the US Department of Education's Office for Civil Rights (OCR) published a Frequently Asked Questions document (the FAQ) "about racial preferences and stereotypes under Title VI of the Civil Rights Act." The FAQ is intended to answer questions that colleges and universities may have after OCR issued its February 14, 2025 Dear Colleagues Letter (the DCL). This letter outlines OCR's interpretation of the Supreme Court's ruling in Students for Fair Admissions, Inc. v. Harvard (2023) (SFFA), its application, and OCR's enforcement intentions. (See our prior coverage of the DCL here.)
The FAQ reiterates and expands upon the DCL's interpretation of SFFA and its application to educational institutions. It also outlines OCR’s planned methods of investigation and enforcement. Although the full impact of this guidance on OCR’s approach to enforcement is far from certain, the new guidance in the FAQ appears to temper some of the DCL's positions on Diversity, Equity, and Inclusion (DEI) programs and related activities.
Rules and Guidance for Institutions Outlined in the FAQ
Title VI prohibits recipients of federal funding from discriminating on the basis of race, color, or national origin. All educational institutions—including pre-kindergarten, elementary, and secondary public schools, as well as public and private colleges, universities, and other post-secondary institutions that receive federal financial assistance—are required to comply with Title VI. The FAQ elaborates on OCR’s views regarding what types of policies, programs, and actions are permissible and which are considered a violation of Title VI.
- Admissions, scholarships, and other opportunities: According to the FAQ, a school may not consider a student's race when determining the recipients of specific educational benefits or resources, including admission into an incoming class, financial aid, scholarships, prizes, administrative support, or job opportunities. Moreover, schools may not administer or advertise scholarships, prizes, or other opportunities offered by third parties that are based on race.
Specifically, in admissions, schools may not craft essay prompts that require applicants to disclose their race or require interviews in order to assess an applicant’s race. While schools can credit an applicant's uniqueness from overcoming adversity or hardship, they may never credit the person’s race.
- Race-based programming: The FAQ warns that "racial classifications further risk devolving into unlawful racial stereotypes." It also states that school-sponsored or school-endorsed racially segregated aspects of academic and campus life, such as programming, graduation ceremonies, and housing, are legally indefensible under Brown v. Board of Education and violate Title VI.
- Diversity, Equity, and Inclusion programs: The FAQ provides that "schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races," including programming that discourages attendance from members of all races. However, the FAQ explains that school programs focused on the interests of particular cultures, heritages, and areas of the world are permissible so long as they do not engage in racial exclusion or discrimination. The same is true for educational, cultural, or historical observances that celebrate or recognize historical events and contributions and promote awareness.
- Hostile school environments: The FAQ lists a number of university activities that constitute "school-on-student harassment" and could create a hostile environment under Title VI. These include: "requiring students to participate in privilege walks, segregating them by race for presentations and discussions with guest speakers, pressuring them to participate in protests or take certain positions on racially charged issues, investigating or sanctioning them for dissenting on racially charged issues through DEI or similar university offices, mandating courses, orientation programs, or training designed to emphasize and focus on racial stereotypes, and assigning coursework that requires students to identify by race and complete tasks differentiated by race."
- Discipline: Institutions may not consider race when disciplining or sanctioning a student in response to complaints or allegations of harassment or in response to First Amendment-protected speech. The FAQ specifically calls out "bias response teams," mandatory training, and compelled statements as potentially problematic disciplinary methods.
- Third parties and the procurement of goods and services: An institution's responsibility to not discriminate against its students applies to the conduct of all third parties over whom the institution exercises some control. Moreover, institutions may not discriminate based on race, color, or national origin when selecting contractors, including those providing after-school programs, substitute teachers, cafeteria services, and special education providers. Most of the FAQ's examples are primarily relevant to the K-12 environment, but colleges and universities should take note of the potential reach of this guidance.
OCR's Assessment of Institutions' Programming and Enforcement Procedures
The FAQ recognizes that the document "do[es] not have the force and effect of law and do[es] not bind the public or impose new legal requirements." Nonetheless, it describes how OCR will assess allegations of discrimination and address institutions deemed to have violated Title VI.
Aside from investigating instances of express racial classification, OCR will also investigate allegations of "covert discrimination." When evaluating whether policies that appear neutral on their face have a racially discriminatory purpose, OCR may consider, among other things:
"(1) whether members of a particular race were treated differently than similarly situated students of other races; (2) the historical background or administrative history of the policy or decision; (3) whether there was a departure from normal procedures in making the policy or decision; (4) whether there was a pattern regarding policies or decisions towards members of a particular race; (5) statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and (6) whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race."
Furthermore, OCR will consider an institution's history and official policies regarding DEI objectives, equity, social justice, or similar goals as probative in its analysis of the institution's policy, program, or action. OCR may apply the three-step burden-shifting test from McDonnell Douglas Corp. v. Green, often used when evaluating allegations of employment discrimination, to assess indirect evidence of intentional discrimination.
When determining whether a racially hostile environment exists at an institution, OCR will take a similar context-based approach by examining the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved.
The FAQ explains OCR's intended enforcement procedure. If OCR determines that an institution is not complying with Title VI, it will contact the institution and attempt to negotiate a voluntary resolution agreement. OCR and the institution will then negotiate a written resolution agreement that describes the specific remedial actions the institution will take to address the identified area(s) of noncompliance. OCR will monitor the implementation of the resolution agreement. If an institution is unwilling to negotiate a resolution agreement, OCR will inform it of the potential consequences, which the FAQ explains may include enforcement through administrative proceedings or referring the case to the Department of Justice for judicial proceedings.
The FAQ also instructs anyone who believes that an institution has engaged in discrimination to file a complaint with OCR.
The FAQ, coupled with the DCL, offers additional guidance on the administration's views regarding DEI and related issues. Like the DCL, the FAQ goes further than the Supreme Court's SFFA decision in its interpretation of what is permissible and what is not permissible. For instance, it addresses scholarships or housing considerations that factor in race. However, it does contain some important ambiguities that schools and universities will have to wrestle with when considering their Title VI compliance.
- "Administrative support" and "opportunities." The FAQ prohibits consideration of race when awarding "administrative support" and "opportunities" offered by third parties. However, the FAQ does not clarify what qualifies as "administrative support" or an "opportunity." While some practices—like student research assistant positions, placement in corporate internships, and student fellowships—may squarely fit into the definition of "opportunities," it is less clear whether "softer," less formalized benefits—like arranging meetings between students and alumni of the same race, or the promotion of minority job fairs to students of color or to all students—will be considered "job opportunities." Without further elaboration, what will be viewed as "administrative support" is even less clear. "Administrative support" could, for example, include campus housing services, mental health and other counseling services, and academic support services, but it remains uncertain which university services will be scrutinized.
- "Activities." Clearly, the term "activities" could cover any initiative, event, or activity that an institution of higher education either sponsors or even endorses. One of the more nettlesome questions that will arise from the FAQ’s coverage of "activities," however, is how OCR will view a school’s sponsorship or approval of student affinity groups that are associated with a specific race. Groups that seek to provide a "safe space" for their members by formally excluding members of other races would almost certainly be vulnerable targets of OCR enforcement. Conversely, there will also likely be enforcement risks for groups with non-discriminatory membership rules if their discussions are perceived as hostile or to effectively exclude students of other races. Furthermore, activities such as the sponsoring of symposia that discuss the history of racial oppression in the United States and the issue of structural racism today could also be the subject of OCR enforcement.
- "Hostile School Environment" and "School-On-Student Harassment." Similarly, the FAQ prohibits a "hostile school environment" and "school-on-student harassment." While the FAQ includes a list of activities that OCR considers to constitute harassment, the list is not exhaustive, and parameters for determining what activities and programs create a hostile environment or constitute "harassment" remain unknown. Given that actionable "hostile environment" and "harassment" under Title VI are assessed both objectively and subjectively, OCR investigations could be commenced based on a student’s subjective views.
- "Third Parties Over Whom the Institution Exercises Some Control." The guidelines also apply to conduct by "third parties over whom the institution exercises some control." However, it is unclear what determines "some control." The FAQ creates uncertainty about which third parties fall under this liability standard and what conduct could expose a university to OCR enforcement.
Institutions need to consider these ambiguities when evaluating their programs and policies and conducting risk assessments.
In light of the DCL's and FAQ's heightened emphasis on race neutrality, compared to OCR’s enforcement approach under the prior administration, schools and universities are well-advised to conduct a fresh assessment of those activities and programs they sponsor or endorse, including those administered by third parties, that have a race-conscious component. Any such assessment should be risk-based—not only determining whether the program or activity falls within the scope of OCR's new enforcement approach but also weighing the risk of enforcement against the educational value of the program or activity. Moreover, this assessment should consider whether the removal of the program or activity could run afoul of state or local law or could violate any contractual obligation to students. Additionally, the assessment should take into account whether the conduct of the program or activity falls within the protection of the First Amendment, including academic freedom principles.
Steptoe will be closely monitoring these developments and providing ongoing updates and is available to help with your institution's risk assessment and provide compliance advice.
