Department of Education Releases FAQs in Connection with Dear Colleague Letter Interpreting Scope of Students for Fair Admissions v. Harvard (SFFA)

On February 28, 2025, the US Department of Education Office for Civil Rights (“OCR”) released “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act” (the “FAQs”). The FAQs are intended to anticipate and answer questions that stem from OCR’s February 14, 2025 “Dear Colleague” Letter, which addresses the “nondiscrimination obligations” of educational institutions under Title VI of the Civil Rights Act of 1964 in the wake of the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (“SFFA”). We discussed the February 14 Dear Colleague Letter in a previous alert.

The Frequently Asked Questions: The fifteen FAQs provide more specific guidance on OCR’s views about how SFFA applies to racial classifications, preferences, and stereotypes, as well as how OCR will interpret the SFFA ruling in its Title VI enforcement. While all of the FAQs shed further light on OCR’s views about racial preferences under Title VI, several bear emphasis:

• FAQ #1: OCR linked to an electronic complaint form available to “[a]nyone who believes that a school has engaged in discrimination.” In theory, this form is only available to those who have experienced discrimination. But on February 27, 2025, OCR launched a public portal, EndDEI.Ed.Gov, accepting community submissions about discrimination in publicly-funded K-12 schools, with no inquiry into the complainant’s identity or relationship (if any) to the institution/conduct at issue.
• FAQs #3-6: OCR expounded upon its views about the holding in SFFA. This includes, for example, OCR’s view that a school may never use a student’s race as a “stereotype or negative” such as by assuming that a “person’s race necessarily implies something about that person,” nor should the school use race as a “plus factor” because a “plus factor for one racial group is necessarily a negative factor for those not in that racial group.” (FAQs #3-4.) OCR advised that, under SFFA, Title VI is “coextensive” with the Equal Protection Clause of the Fourteenth Amendment and, therefore, all education institutions are required to comply with Title VI. (FAQ #5.) OCR further stated that schools cannot consider race at all when distributing limited or finite “benefits or resources” such as admissions spots, financial aid, scholarships, prizes, administrative support, or job opportunities. (FAQ #6.)
• FAQ #7: Citing to the landmark case Brown v. Board of Education for the proposition that “[s]egregation is illegal,” OCR concluded that any “school-sponsored or school-endorsed racially segregated” aspect of academic and campus life, including programming, graduation ceremonies, and housing, is impermissible.
• FAQs #8-9: These FAQs address diversity, equity, and inclusion (DEI) initiatives, and OCR made clear that it will not determine whether a particular policy or program violates Title VI just based on the label, but will look to the “facts and circumstances of each case.” (FAQ #8.) OCR suggested that programs focused on “particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race” (emphasis added). Likewise, “educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events” would not run afoul of Title VI “so long as they do not engage in racial exclusion or discrimination” or create a “hostile environment.”

As to “hostile environments,” FAQ #9 explains that OCR will “examine 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.” Examples of possible hostile environments at an elementary school include: programs that “shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors.”

Meanwhile, “more extreme practices at a university” such as “requiring students to participate in privilege walks,” “segregating them by race for presentations and discussions with guest speakers,” and “mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes,” among others, may create a hostile environment under Title VI. OCR acknowledged in FAQ #9 that federal law prohibits the Department of Education from controlling schools’ curricula, while simultaneously emphasizing that “curricular prerogatives of states and local school agencies do not relieve schools of their Title VI obligations.”

• FAQ #10: OCR accused certain schools and universities of attempting to circumvent SFFA’s holding by engaging in the “essay loophole,” i.e., crafting prompts that require applicants to disclose their race or conducting brief interviews in order to visually assess an applicant’s race. OCR made clear that, under SFFA, “[s]chools can credit what is unique about the individual in overcoming adversity or hardship but never the person’s race.”
• FAQ #13: OCR stated that it will evaluate race-neutral programs for race-conscious efforts, using “different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent.” For example, a school’s history and its policies that use racial classifications “to further DEI objectives, ‘equity,’ a racially-oriented vision of social justice, or similar goals will be probative in OCR’s analysis.”
• FAQ #14: Importantly, OCR clarified that a college will not lose federal funding immediately if it is found to be in violation of antidiscrimination laws. As is OCR’s standard practice, OCR intends, as a first step, to negotiate “voluntary resolution agreements” with schools found to be out of compliance with civil rights laws. If schools are unwilling to negotiate, OCR stated it will seek enforcement through administrative proceedings or refer the case to the Department of Justice.

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The FAQs, like the Dear Colleague Letter, do not have the force and effect of law, but they do represent OCR’s enforcement posture on this topic. Despite the additional information provided by the FAQs, the Letter leaves significant ambiguities, and depending upon how the Letter is implemented, it’s application may go beyond the contours of current, applicable law and constitutional principles.

On February 25, 2025, the American Federation of Teachers and the American Sociological Association filed a lawsuit in Baltimore, Maryland challenging the Dear Colleague Letter as violating the First and Fifth Amendments. On March 5, 2025, they filed an amended complaint, adding a K-12 Oregon school district as a plaintiff and criticism of the FAQs and the “End DEI” portal, which we expect will be central to this litigation. Also on March 5, 2025, the National Education Association filed a second lawsuit in New Hampshire challenging the Letter, the FAQs, and the “End DEI” portal.

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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