U.S. Department of Education releases FAQ for February 14th Dear Colleague Letter

On February 28, 2025, the U.S. Department of Education (the Department) released a Frequently Asked Questions (FAQ) document in connection with the February 14 Dear Colleague Letter (DCL). This document aims to clarify how educational institutions comply with federal civil rights law and the Supreme Court’s 2023 Students for Fair Admissions (SFFA) decision.

The Department organized the FAQ sheet into 15 questions focused on the prohibition of race preferences, compliance with Title VI, the use of Diversity, Equity, and Inclusion (DEI) programs, and the Department’s Office for Civil Rights investigation and enforcement process.

The FAQ clarifies that the Department views Title VI as “coextensive” with the Equal Protection Clause of the Fourteenth Amendment, meaning that discrimination by a public higher education institution that violates the Equal Protection Clause would also violate Title VI if committed by a private institution that accepts federal funds, and vice versa.

Importantly, the FAQ alleviates concern raised by the earlier Executive Orders and DCL that noncompliant institutions could face immediate revocation of federal funds. The FAQ clarifies that, if OCR determines that an institution is out of compliance with Title VI, it will first attempt to negotiate a voluntary resolution agreement with that institution. The FAQ states that the resolution agreement will outline the specific remedial actions the institution needs to take in order to resolve areas of Title VI noncompliance identified by OCR. Institutions unwilling to negotiate a resolution agreement may face enforcement action through administrative proceedings or be referred to the Department of Justice for judicial proceedings.

The FAQ helpfully clarifies that OCR will use a fact-specific inquiry to determine whether a particular institution’s policies and practices comply with Title VI. Addressing concerns regarding prior references to “illegal DEI,” the FAQ clarifies that specific terminology, such as “Diversity, Equity, and Inclusion” will not automatically amount to a Title VI violation. The Department acknowledged the limitations of its authority over school curricula selection and First Amendment protections from content-based speech restriction. The Department specifically notes that certain programs or curricula focused on race will be evaluated on a case-by-case basis, accounting for the age group receiving the program. The FAQ notes that, while some programs may be inappropriate for elementary-aged students, equivalent programs at the university level would be less likely to rise to the creation of a hostile environment. The Department notes, however, that mandatory courses, training, or other programming “designed to emphasize and focus on racial stereotypes,” such as mandatory privilege walks or course assignments with race-based task differentiation, could create a hostile environment under Title VI.

The Department reiterated, as initially noted in the DCL, that its interpretation of the SFFA decision extends beyond racial preferences in admissions to include racial preferences in financial aid, scholarships, administrative support, and job opportunities. The FAQ specifically notes that institutions are prohibited from administering or advertising scholarships, prizes, or other opportunities offered by third parties that are based on race.

As it relates to investigations into facially neutral policies that advance a “racially discriminatory purpose,” the FAQ states that OCR will conduct a fact-specific inquiry to determine “whether a school acted with a racially discriminatory purpose.” The FAQ also provides a non-exhaustive list of types of circumstantial evidence OCR will consider in its review of the facially neutral policy or practice. Importantly, the FAQ emphasizes, “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 will be probative in OCR’s analysis of the facts and circumstances of an individual case.”

As of the date of the FAQ, the lawsuit regarding the DCL is still pending. Stay tuned for additional developments by subscribing to Bricker Graydon’s Higher Education Insights Emails.

Interested in learning more? Join us on Friday, March 14th for a free 1-hour webinar where the Higher Education Team will provide and discuss timely updates to help institutions of higher education prepare for and comply with the various Executive Orders, guidance documents, court orders, and more. Register here!