Latest Trump guidance on race has schools scrambling amid ‘intense fear’

The letter from the Education Department was published on a Friday night, at the start of a three-day weekend, but it quickly flewthrough the inboxes of school officials across the country. The Trump administration was threatening to pull federal funding from any school district or college that considers race in virtually any way for any reason.

The letter, from the department’s Office for Civil Rights, asserted that the 2023 Supreme Court decision outlawing consideration of race in admissions decisions actually applied well beyond admissions. The department would now consider any effort to consider race — in hiring, discipline policy, scholarships and every other aspect of campus life — to be unlawful.

Some of the letter’s assertions were simply restatements of accepted law. Others took sides in what have been murky situations — such as whether college scholarships can consider race. In other cases, the letter made claims that experts said were wholly unsupported by the Supreme Court precedent.

One particularly controversial paragraph asserted that even policies that have nothing to do with race are illegal if the goal is racial diversity. Law professors and others said the court never said any such thing.

“The Court’s decision did not sweep nearly as broadly as the Department of Education’s letter asserts that it swept,” said Justin Driver, a professor at Yale Law School and an expert on education law. “But the genuine ambition here is to push universities into engaging in immediate disarmament.”

The sweeping assertion of federal power mixed with complex legal questions left university officials around the country confused and even scared by the letter’s sweep. Ominously, it set a 14-day clock, threatening to take “appropriate measures to assess compliance,” starting March 1. And it included a link for those who want to file formal complaints against schools.

Five thousand college officials tuned in to a webinar on Tuesday with the American Council on Education, their lobby group, seeking better understanding. All week, the National Association for College Admission Counseling was deluged with questions from college officials and high school counselors.

“Questions, concerns, a lot of anxiety and worry,” about what is required by law, what is not, and how people should respond abounded, said Angel B. Pérez, the group’s chief executive.

On his first full day in office, President Donald Trump signed an executive order directing the Justice and Education departments to issue guidance to K-12 officials and higher education institutions on how to comply with the Supreme Court’s landmark 2023 decision banning race-conscious admissions at Harvard University and the University of North Carolina at Chapel Hill. The order gave them 120 days.

An Education Department spokeswoman said that guidance has yet to come, and that this letter — which was produced much more quickly than letters like this normally are — was meant as an interim step.

Separately, on Friday a Maryland federal district court judge blocked portions of Trump’s executive orders related to DEI from taking effect. That ruling affected cancellation of federal contracts and requirements put on universities and publicly traded companies, but it was unclear whether it would affect the letter that the Office for Civil Rights sent to schools. The Education Department spokeswoman said the agency was consulting with the Justice Department on this point.

The ripple effect of the letter, unfolding over the past week, was fast but not all in one direction. Some college officials, already fearful of financial penalties and feeling attacked by the nascent Trump administration, immediately began talking about policy changes.

Under federal law, schools that discriminate on the basis of race are not eligible for federal funding. The federal government provides about 10 percent of K-12 funding, billions of dollars in Pell Grants and even more in student loans.

“It is a time of intense fear throughout the entire sector,” said Michael S. Roth, the president of Wesleyan University. University officials and faculty, he said, are looking at everything they put into writing — letters to parents, text on websites, CVs — and wondering if they should change language referencing race,diversity, equity and inclusion.

‘The law hasn’t changed’

For conservatives, the move — and some of the responses to it — was overdue. This letter was “the kind of wake-up call that schools need,” said Michael Poliakoff, president of the conservative American Council of Trustees and Alumni.

He hoped that it would result in schools ridding their campuses of DEI initiatives, including in hiring, where, he said, too often race and racial attitudes are taken into account in an attempt to diversify the faculty.

“DEI and other forms of discrimination are a virulent cancer that eat away at the very essence of education,” he said.

But others suggested the letter was mostly political chest-thumping and said universities should not overreact or overcorrect.

An educational consultant who specializes in civil rights called it “regulation by intimidation” and advised clients that the letter “extends well beyond existing law.” The title of one law firm’s post about the letter was “Overreaching and Misleading.”

AASA, The School Superintendents Association, told its school districts across the country that the threat to withhold federal funding was not particularly convincing because, in part, “the legal arguments underpinning this guidance are likely to be successfully challenged in court.”

But Jon Fansmith, senior vice president for government affairs at the American Council on Education, said hefeared colleges will change policies simply because they are scared. “We don’t want to see institutions rushing to comply with unclear guidance.”

Instead, his advice to college leaders is: “Be calm. Don’t let the intentional chaos and confusion and disruption move you away from your mission and values.”

A range of interpretations

The Education Department sent the letter, dated Feb. 14., opening with the salutation, “Dear Colleague.” It asserts that discrimination on the basis of race is widespread on American campuses in the form of race-based preferences, racial affinity groups and preferential hiring.

“Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices,” says the letter, which was signed by Craig Trainor, acting assistant secretary for civil rights.

The letter does not mention historical events such as slavery, Jim Crow or other legal discrimination policies in America’s past; rather it is concerned with efforts today that may classify people based on their race. “Smuggling racial stereotypes and explicit race-consciousness into everyday training, programming and discipline” is illegal, it says.

In making its case, the letter cited the Supreme Court ruling on affirmative action, Students for Fair Admissions v. President and Fellows of Harvard College, which rejected the use of race-conscious admissions.

Some universities responded to the decision by embracing race-neutral efforts to create a diverse class of students. Those included increasing financial aid for low-income students, recruiting from a wider range of places, investing in programs intended to help disadvantaged students and encouraging students whose parents did not go to college to apply.

In perhaps its most controversial assertion, the letter argued that even race-neutral policies are illegal if the goal is to increase diversity.

The letter cited one such policy — eliminating standardized testing — which the letter said, would be “unlawful” if the goal was “to achieve a desired racial balance or to increase racial diversity.”

But even some conservatives said that the Supreme Court has not said that race-neutral policies are verboten.

“There are race-neutral factors that will be perfectly legal, as well as fair, in admissions decisions,” said Edward Blum, president of Students for Fair Admissions, the group that challenged the affirmative action policies at Harvard as well as the University of North Carolina in the first place.

Richard Kahlenberg, who testified for the plaintiffs in the case, argued in his testimony that racial diversity can be achieved through nonracial means — for instance, by directing advantages to low-income applicants.

“The whole point of my testimony was that racial diversity is a good thing but it can be achieved through race-neutral means,” he said.

The same point was made in a memo Thursday to university leaders and general counsels by leading law professors, which argued that the Supreme Court precedent allows for race-neutral policies. It cited the court’s decision last year not to hear a case out of Fairfax, Va., regarding an elite magnet school’s admissions policy. The school eliminated a rigorous admissions test and instead reserved seats from geographically diverse areas, which also generated racial diversity.

The fact that the Supreme Court declined to hear the case, the professors wrote, “suggests that the Supreme Court is not ready to entertain the Trump administration’s theory that any policy adopted with a racial motive — including equality-oriented goals like racial diversity or racial inclusion — is inherently suspect.”

Others cautioned against reading too much into the court’s decision not to hear a case. Kenneth Marcus, who headed the Office for Civil Rights during the first Trump administration, agreed with the letter’s argument that policies motivated by racial goals are not legal and predicted the Supreme Court will at some point take a case that will make this point explicit.

“The court is making increasingly clear that colleges cannot do indirectly what they are forbidden from doing directly,” he said.

Other elements of the letter were not new. For instance, it noted that affinity groups that restrict membership in a club based on race are not allowed.

Ray Li, an attorney who worked in the Office for Civil Rights during the Biden administration, said OCR regularly looked into affinity groups and, if membership was limited by race, forced schools to change their policies.

“I don’t see a clear change in the law here,” he said.

But with the letter touching on virtually every element of campuslife, there was considerable confusion, said Pérez, of the college admissions group.

“Does this mean that I can no longer have a Black student union? Does this mean that I can no longer have LGBTQ student clubs on campus?” he said people were asking.

He noted that it was common for donors to designate money for scholarships for certain groups of students. After the affirmative action decision, schools have wondered whether these would be allowed. Now, he said, there is even more nervousness about these programs.

The letter also says race cannot be a consideration in hiring. It has long been illegal to hire or not hire people based on their race, but schools have made special efforts to recruit people of color. The letter suggested that this, too, might be unlawful.

This stance is likely to change hiring practices at Wesleyan, said Roth, the school’s president, where one of the school’s goals is to hire more faculty of color.

“The letter describes that kind of program as discriminatory,” and illegal, Roth said. “So we can work really hard to make sure we’re not being prejudiced against people of color when we hire, but we can’t intentionally try to hire more people of color.”

This article was published by the Washington Post on February 22, 2025.