Department of Education Issues Dear Colleague Letter Interpreting Scope of Students for Fair Admissions v. Harvard (SFFA)

On February 14, 2025, the US Department of Education Office for Civil Rights (“OCR”) released a “Dear Colleague” Letter (the “Letter”) that seeks to “clarify and reaffirm the nondiscrimination obligations” of educational institutions under Title VI of the Civil Rights Act of 1964 and other relevant legal authorities.

Background: In 2023, the US Supreme Court ruled in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (“SFFA”), that race-based admissions policies at Harvard and the University of North Carolina were unconstitutional.

The issue facing the Supreme Court in SFFA was the use of race in university admissions policies. In light of the Court’s rationale, it remained an open question as to how broadly the decision reached into other areas of university life, such as race-based scholarships or diversity, equity, and inclusion (“DEI”) programs.

On January 21, 2025, President Trump issued an Executive Order criticizing DEI programs and directing the Attorney General and Secretary of Education to issue joint guidance within 120 days to educational institutions regarding compliance with SFFA, previewing the Trump Administration’s view that the holding in SFFA applies beyond university admissions policies.

The Dear Colleague Letter: Aligning with the Executive Order, the Letter views the SFFA decision as applying “more broadly” than just admissions policies to a far-ranging prohibition on using race in “every facet of academia.” The Letter says the SFFA holding applies to “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

The test, the Letter says, 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.” This includes by “[r]elying on non-racial information as a proxy for race, and making decisions based on that information.” For example, according to the Letter, a school cannot:

• Use “personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students;”
• “[E]liminate standardized testing to achieve a desired racial balance or to increase racial diversity;” or
• Employ DEI programs that “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.”

What This Means: The Letter, like any Dear Colleague Letter, is non-binding and does not have the force or effect of law. Rather, it is intended to clarify OCR’s current position surrounding these issues. That said, colleges and universities should bear in mind several important considerations in light of the Letter:

• First, the Letter warns that the Education Department plans to take “appropriate measures” to ensure compliance with applicable law based on the positions taken in the Letter beginning no later than February 28, 2025, i.e., 14 days following the Letter’s publication.
• Second, to that end, all educational institutions are advised, with threat of loss of federal funding, to: (1) ensure that their policies and procedures comply with existing civil rights laws; (2) cease all efforts to “circumvent” prohibitions on the use of race by relying on proxies or other indirect means; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used to circumvent prohibited uses of race.
• Third, the Letter provides that “[a]dditional legal guidance will follow in due course.” This likely includes, at a minimum, the joint guidance by the Attorney General and the Secretary of Education directed by President Trump’s January 21 Executive Order, which is due no later than May 21, 2025.

Open issues remain following the issuance of the Letter. For example, the Letter also calls into question race-neutral choices if they are used to achieve a race-conscious purpose, such as the use or non-use of standardized testing for admissions—an issue that is an open question in the courts. See, e.g., Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 871 (4th Cir. 2023) (upholding public magnet high school’s admissions policy in the face of an Equal Protection Clause challenge brought by Asian-American students), cert. denied, 218 L. Ed. 2d 71 (Feb. 20, 2024). Despite non-binding caselaw to the contrary, the Letter suggests that this is impermissible: “Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law…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.”

Similarly, the Supreme Court made clear that “nothing in [the SFFA] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” so long as the student is “treated based on his or her experiences as an individual—not on the basis of race,” SFFA, 600 U.S. at 230-31—something the Letter appears to foreclose. See Letter, at 2-3 (“[A] school may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students.”).

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California; Anton Metlitsky, an O’Melveny partner licensed to practice law in the District of Columbia and New York; Tristan Morales, an O’Melveny partner licensed to practice law in California and the District of Columbia; Jennifer B. Sokoler, an O’Melveny partner licensed to practice law in New York; Kim Williams, an O’Melveny partner licensed to practice law in Texas; David Cohen, an O’Melveny counsel licensed to practice law in New York; Daniel Lautzenheiser, an O’Melveny associate licensed to practice law in the District of Columbia; and Naomi Riemer, an O’Melveny associate licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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