Whereas a lot of the now-infamous Valentine’s Day Pricey Colleague letter from the Division of Training’s Workplace for Civil Rights was imprecise and void of particular data, the next sentence was crystal clear:
“The Division intends to take acceptable measures to evaluate compliance with the relevant statutes and laws primarily based on the understanding embodied on this letter starting no later than 14 days from at the moment’s date, together with antidiscrimination necessities which can be a situation of receiving federal funding.”
Regardless of the letter’s clear language on the contrary, greater schooling leaders and the media (together with the upper ed press) did the maths and declared Feb. 28 “deadline day” for variety, fairness and inclusion packages in greater schooling. “Deadline day,” learn one story. “The clock is operating out,” claimed one other. An Related Press story ran with the lead “Colleges and schools throughout the U.S. face a Friday deadline to finish variety packages or threat having their federal cash pulled.” What ensued was a self-made disaster characterised by spirited debates and ill-advised anticipatory compliance with the yet-to-be-announced modifications to enforcement of Title VI of the federal Civil Rights Act of 1964.
Seasoned veterans knew higher. The most probably “subsequent step” indicated by the division was presumed to be additional communication from OCR concerning the “measures to evaluate compliance” that have been promised within the letter.
And that’s precisely what occurred. On March 1, the division issued a press launch and FAQ doc elaborating on the Pricey Colleague letter. The FAQ elaborates on the brand new administration’s intention to make use of a novel and expansive interpretation of the 2023 Supreme Courtroom choice in SFFA v. Harvard, an admissions case during which Chief Justice John Roberts opined that diversity-related objectives inside greater schooling could be “commendable” and “plainly worthy.” It solutions questions on how the division will obtain complaints. In brief, the division did precisely what it acknowledged it might do inside the 14-day timeline. The so-called deadline was a chimera, an artifact of the confusion and worry created by the letter’s politically charged context and lack of specificity.
Whereas it leaves many key questions unanswered, the FAQ does favorably settle a number of unclear factors raised by the Pricey Colleague letter.
Query 8 asks, “Are Variety, Fairness and Inclusion (DEI) packages illegal below SFFA?” The reply isn’t any. Provided that these packages discriminate on the premise of race, colour or nationwide origin do they violate the regulation. The reply additional clarifies what we now have identified all alongside: “Whether or not a coverage or program violates Title VI doesn’t rely upon using particular terminology akin to ‘variety,’ ‘fairness,’ or ‘inclusion.’” The division declares in unambiguous language that it can not deem sure phrases “unlawful,” nor are phrases akin to “variety,” “fairness,” “inclusion” or “belonging” a violation of nondiscrimination obligations.
Query 9 asks, “Does this imply that college students, academics, and college staff might not talk about matters associated to race or DEI below Title VI?” Once more, the reply isn’t any. Provided that these classroom discussions create “hostile environments by race-based insurance policies and stereotypes” do they violate the regulation. The reply makes clear, “Nothing in Title VI, its implementing laws, or the Pricey Colleague Letter requires or authorizes a faculty to limit any rights in any other case protected by the First Modification.”
The 14-day window between the Pricey Colleague letter and the FAQ didn’t cross with out some productive and inspirational advocacy. Notably, Paulette Granberry Russell and the Nationwide Affiliation of Variety Officers in Increased Training gained a big authorized victory in federal district court docket, reaching a preliminary injunction blocking enforcement actions and the withdrawal of funding primarily based on anti-DEI govt orders.
The American Council on Training submitted a persuasive letter to OCR—signed by 71 nationwide greater schooling organizations—requesting that the Pricey Colleague letter be rescinded and that the division interact with the upper schooling neighborhood to make sure a transparent understanding of the authorized obligations of faculties and universities—a uncommon instance of upper schooling talking with one voice on this matter.
The remainder of the frenetic exercise on this two-week time span was much less productive. Regardless of many considerate options on the contrary, some schools and universities rapidly undertook “audits” and web site “scrubbing” of programming they thought would possibly probably be lined within the OCR’s forthcoming communications. A cautious evaluate of the FAQ doc is more likely to reveal that a lot of this was an pointless overreaction.
From my perspective, essentially the most dangerous incidence was an unproductive debate over institutional responses to the letter. Most of those took the form of a false dichotomy between braveness and cowardice. In my estimation, the establishments that stayed the course and waited for steering from OCR weren’t brave, however quite prudent. Conversely, the establishments that moved to motion weren’t universally motivated by worry or cowardice, however quite by institution-specific realities of board governance, state and native politics, and particular person threat assessments. On the finish of the day, it was context and never braveness or cowardice that motivated establishments.
With a broadcast methodology for compliance evaluation now communicated, the division has answered just a few of the lingering questions outlined on Valentine’s Day. Most notably, the FAQ gives a transparent assertion on how the Pricey Colleague letter shall be enforced.
The reply to Query 14 clarifies that the division will use current case-processing process—which incorporates due course of for establishments and the opportunity of a voluntary decision settlement—and hyperlinks to a newly revised Case Processing Guide. It’s now the job of establishments which can be dedicated to constructing “inclusive and numerous campus communities”—because the ACE letter penned by Ted Mitchell so eloquently states—to organize a spirited protection of their programming by demonstrating that their efforts don’t violate federal civil rights regulation.