ACE and more than 60 higher education associations have called on the Department of Education (ED) to rescind its recent Dear Colleague Letter (DCL) regarding diversity, equity, and inclusion (DEI) policies on college campuses. The letter, issued on Feb. 14 by ED’s Office for Civil Rights (OCR), has sparked widespread concern and confusion, and the associations argue forcefully that it misinterprets institutions’ legal obligations.
The DCL outlines how colleges and universities should align their policies with the Supreme Court’s 2023 ruling in Students for Fair Admissions (SFFA) v. Harvard, a case that centered on the use of race-conscious admissions. According to the DCL, investigations into compliance could begin as soon as Feb. 28, with the potential loss of federal funding at stake. While ED maintains that the letter does not introduce new legal standards, ACE and other groups argue in their Feb. 25 letter that the threats of enforcement contradict this claim.
The guidance has left many institutions scrambling to assess how their DEI programs align with the department’s interpretation. The associations argue that the DCL lacks legal clarity and fails to acknowledge the First Amendment protections afforded to colleges and universities. They emphasize that “efforts to build inclusive and diverse campus communities are neither discriminatory nor illegal,” citing Chief Justice John Roberts’ majority opinion in the SFFA case, which recognized diversity-related goals in higher education as “commendable” and “plainly worthy.”
“The DCL’s ambiguous language has only led to confusion on campuses about their compliance responsibilities,” the groups write. “Unfortunately, [its] reference to ‘DEI programs’ does not provide any clarity to institutions about their obligations under the law or how previously legal programs designed to support students now could be in violation of the law.”
The growing uncertainty around DEI policies has already led to legal challenges. A coalition led by the American Federation of Teachers and the American Sociological Association has filed a lawsuit against the department, arguing that the DCL unlawfully reinterprets existing laws without congressional or judicial authority. The lawsuit calls it an unlawful overreach that threatens academic freedom and institutional autonomy. Other lawsuits may be coming.
Meanwhile, a federal judge recently blocked key provisions of two Trump administration executive orders that sought to eliminate DEI initiatives in a suit brought by the American Association of University Professors, the National Association of Diversity Officers in Higher Education, and other plaintiffs. The Trump administration will seek an expedited appeal of this ruling, which does not appear to directly impact ED’s DCL
The Trump administration will seek an expedited appeal of this ruling, which does not appear to directly impact ED’s DCL.
In another case, the National Urban League, National Fair Housing Alliance, and the AIDS Foundation of Chicago have sued the Trump administration over its DEI and gender identity executive orders, arguing that they exceed presidential authority and intentionally discriminate against Black and transgender individuals.
Given these legal and institutional concerns, ACE and its partners are urging ED to retract the guidance and work collaboratively with higher education stakeholders to develop legally sound and clearly articulated policies.
“For these reasons, we respectfully request that the Department rescind this DCL and work to promulgate guidance that reflects existing law,” the letter concludes. “OCR ought to engage relevant stakeholders in a consultative manner to ensure that institutions of higher education are in compliance with their legal obligations under Title VI and federal nondiscrimination law.”