The U.S. Department of Education late last week clarified its stance on diversity, equity and inclusion policies in schools, saying that racial preferences and other forms of diversity and inclusion efforts are indeed allowed in some situations.
According to the department’s new FAQ, "Schools with programs focused on interests in 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." Celebrating Black History Month, International Holocaust Remembrance Day, or other similar events are also allowed, the guidance clarifies.
"Whether a policy or program violates Title VI does not depend on the use of specific terminology such as 'diversity,' 'equity,' or 'inclusion,'" the nine-page document said.
The Q&A guidance seems to ease the administration's strict stance on schools' DEI efforts, which school and district employees had initially feared would also limit inclusive programs and practices like student affinity groups, cultural observances and culturally reflective curriculum in addition to impacting race-conscious school admissions.
Fueling those concerns, the the Education Department's Office for Civil Rights last month released a "Dear Colleague" letter to schools saying Title VI — the federal civil rights law that protects against race-based discrimination — prohibits schools from "using race in decisions pertaining to … administrative support" and "all other aspects of student, academic, and campus life."
"The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent," the original Feb. 14 letter said. It directed schools to comply by the end of February — or risk losing federal funding.
However, the new document released over the weekend softens the department's initially aggressive stance, said Jackie Gharapour Wernz, a former civil rights attorney for the U.S. Department of Education's Office for Civil Rights under the Obama and Trump administrations and now an education civil rights consultant for Education Civil Rights Solutions, which provides expert witness, training and other services.
Anti-DEI rift widens
The updated guidance comes after the department last week launched an anti-DEI portal aimed at identifying potential areas for investigation. The department encouraged parents, students and teachers to use the portal to bring to its attention schools or districts using "illegal discriminatory practices," as well as teaching of "divisive ideologies and indoctrination."
“Parents, now is the time that you share the receipts of the betrayal that has happened in our public schools," said Tiffany Justice, co-founder of anti-DEI and conservative parental rights group Moms for Liberty, in the Education Department announcement launching the portal.
The administration's hardline stance on DEI has been challenged by the education community in the past few weeks.
Just prior to the Education Department's FAQ release, the Michigan Department of Education on Feb. 27 sent a memo to its schools challenging the anti-DEI directive and calling it "misleading" to challenge DEI efforts by grouping them all under the same umbrella.
Efforts like diversifying literature, history instruction, and grow-your-own teacher development programs "expand opportunity" rather than discriminate, State Superintendent Michael Rice wrote.
In a similar vein, Oregon's Eugene School District 4J last week became the first school district to join an American Federation of Teachers lawsuit seeking to stop implementation of the Trump administration's "Dear Colleague" letter. The lawsuit alleged that the Feb. 14 directive suggests "a wide variety of core instruction, activities, and programs that schools, from pre-kindergarten through post-graduate education, use to teach and support their students now constitute illegal discrimination."
The Education Department clarification over the weekend "scales back many of these extreme interpretations, recognizing that schools can still pursue broader goals related to representation and student support, provided they do not restrict access based on race or create race-based hostility," said Gharapour Wernz.
AFT President Randi Weingarten, in response to a query, did not say whether the union intends to push forward with its lawsuit. However, she said in an emailed statement on Monday that the new OCR document "has just made things murkier."
"If you are a classroom teacher, you still have no idea what you can or can’t teach when it comes to the history of the United States and the world," said Weingarten. "And you just don’t know whether your attempts to create a safe and welcoming environment where all students feel accepted for who they are complies with these new regulations."
Some questions still remain
Indeed, while the new Q&A document may ease some educator concerns around DEI in school curriculum, policies and programming, other questions remain over the agency's enforcement of Title VI.
How the department will evaluate a school or district's intent in setting its DEI policies and factor schools' previous support of race-based practices into federal investigations of schools — which it said it intends to do — still hangs in the air.
The letter seems to say, "If you're a woke district out there, then we are coming for you,'" said Gharapour Wernz. "It's not even enough if you are getting rid of these race-conscious programs."
How the fight over DEI will impact students with disabilities — who schools often serve through inclusive practices — also remains to be seen. While the special education community has asked the administration for clarification on the issue, the updated guidance does not answer those questions.
Meanwhile, in between the first and second iterations of the anti-DEI guidance, many schools already moved to comply with the department's more aggressive initial letter, said Gharapour Wernz.
"I just don't think that it is necessarily appropriate to — as soon as the Education Department says, ‘Jump’ to ask, 'How high?,'" she said. "I think there needs to be a little bit of time to say, 'Okay, why are we jumping?'"
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