New FAQ Provides Additional Guidance for Ban on Racial Preferences in Admissions and K-12 Schools

The Department of Education has released an FAQ to clarify concerns stemming from last month’s Dear Colleague Letter, which instructed institutions to cease “using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond” or risk losing their eligibility for federal funding.

The FAQ guide provides additional insight into how organizations should approach race-related issues.

Key FAQ Highlights

• The Department of Education’s ban on racial preferences stems from the Supreme Court’s ruling in Students for Fair Admissions v. Harvard, which ruled that race-based admission policies violated the Equal Protection Clause and Title VI.
• The FAQ clarifies that programs focusing on diversity, equity, and inclusion are not inherently unconstitutional, as long as they do not discriminate against who can attend or promote racial stereotypes
• Students for Fair Admissions v. Harvard does not mean that the Department cannot restrict discussion of DEI topics in the classroom, since they are still protected under the First Amendment
• Students are allowed to discuss how their race influenced their lives, but race cannot be a primary factor in the institution’s admissions decisions; however, the discussion of race in these essays cannot indirectly promote race-based preferences
• Any race-based policies must be narrow, serve a compelling interest, and cannot be used indefinitely during schools programs
• Third-party contractors are banned from indirectly implementing race-based preferences given that they violate Title VI policy
• OCR will try to reach a voluntary resolution with any schools found in violation of these policies. Any institution that refuses to comply will face enforcement actions, such as referrals to the Department of Justice

In additional to these highlights, the FAQ provides more detailed about 15 common inquires:

Questions Addressed by the FAQ

1. Where can I report discriminatory conduct?
2. What did the U.S. Supreme Court decide in Students for Fair Admissions v. Harvard?
3. What did the Supreme Court say about racial preferences in Students for Fair Admissions v. Harvard?
4. What does the Supreme Court’s decision regarding the Equal Protection Clause mean for Title VI?
5. What did the Supreme Court mean by using a student’s race as a stereotype?
6. What did the Supreme Court mean by using a student’s race as a negative?
7. Can schools separate students by race if they treat all students equally?
8. Are Diversity, Equity, and Inclusion (DEI) programs unlawful under SFFA?
9. Does this mean that students, teachers, and school employees may not discuss topics related to race or DEI under Title VI?
10. As part of their admissions process, may schools include application essay prompts that invite discussions of race?
11. What is the scope of Title VI coverage as it applies to schools?
12. How does Title VI apply to a school’s procurement of goods and services?
13. How will OCR investigate allegations of covert discrimination?
14. How will OCR proceed with schools that it determines are out of compliance with Title VI?
15. Where can I learn more about this topic?

For more information about these FAQs, please refer to the Racial Preferences and Stereotypes FAQ.

SOURCE: U.S. Department of Education Releases Frequently Asked Questions on Dear Colleague Letter About Racial Preferencing