The Department of Education’s D.E.I. Letter Just Threatened the Existence of Many Colleges

The Department of Education issued a threatening letter this month addressed to all educational institutions that receive federal funds. The letter offers an extreme and implausible interpretation of the law governing diversity, equity and inclusion policy. It demands that schools abandon not just affirmative-action-like programs that consider the race of individuals but also policies that are blind to individuals’ race if those policies were adopted, even in part, to promote racial diversity.

The letter also claims that federal law prohibits schools from teaching or promoting certain ideas about race that the department deems unacceptable.

The department gives schools until Feb. 28 to comply with this interpretation of the law or risk losing their federal funding, which would endanger the existence of many colleges and universities. This threat is a brazen attempt to bully schools into making policy changes that the law does not require.

The primary legal authority the letter cites is the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which effectively ended affirmative action in university admissions. Some of the letter’s demands, such as getting rid of scholarship programs that consider an applicant’s race, are reasonable extensions of the court’s decision. But the letter goes beyond those demands, misreading the law in a way that further imperils racial diversity in schools.

There are many ways to promote diverse and inclusive campuses without relying on race. Schools can expand financial aid for poor students. They can eliminate legacy admissions. They can favor applicants whose parents did not attend college. Such policies don’t treat anyone differently based on race, and they also serve legitimate goals unrelated to race, such as socioeconomic diversity.

So why does the Department of Education object to such policies? Because schools adopting them have often hoped that they would promote racial diversity. The department’s letter contends that when policymakers seek that outcome, the resulting policies are illegal even if race-neutral. It argues that such policies embody “preferences” that are impermissible.