Education Department softens controversial guidance on race and schools

The Education Department is walking back some of the most incendiary suggestions it made last month in a sweeping directive threatening to pull federal funding from any college or K-12 school district that considers races in hiring, programming, scholarships and virtually every other aspect of student and campus life.

A new question-and-answer document, posted online late Friday, clearly states that by law the federal government cannot dictate curriculum. It also notes that cultural celebrations and events celebrating Black History Month are legally permitted as long as they are open to people of all races.

It also narrows the definition of which types of diversity, equity and inclusion programs might draw scrutiny. The new directive adheres more closely to traditional court doctrines and interpretation of civil rights law, experts said Saturday.

“I see it as a significant retrenchment back towards more established case law,” said Ray Li, an attorney who worked on these issues in the Office for Civil Rights during the Biden administration. “It reads as if written by someone different.”

“A lot of the most unsupported claims made” in the original letter, he said, “have been walked back.”

The original guidance suggested, for instance, that teaching that the United States was built upon “systemic and structural racism” would be unlawful. A lawsuit challenging the directive questioned how any school could teach a complete history without including examples of systemic racism such as slavery, Jim Crow segregation laws and the incarceration camps Japanese Americans were sent to during World War II.

“It’s certainly better supported by law and more neutral in tone” than the original letter, agreed Jon Fansmith, senior vice president of government relations at the American Council on Education, a lobbying group for colleges and universities.

Since taking office, President Donald Trump and his administration have signaled an eagerness to investigate school districts and colleges that are out of step with conservative legal theories and his priorities regarding how schools handle questions of race and gender.

Two weeks ago, the Education Department’s Office for Civil Rights sent a “Dear Colleague” letter to school officials threatening to pull federal funding from any school or college that considers race in hiring, discipline policy, scholarships, prizes or any other aspect of campus life. It gave schools a two-week deadline to comply, setting off confusion and panic on campuses nationwide.

Then, on Thursday, the department opened a new portal for people to report instances of discrimination for the agency to investigate.

“The U.S. Department of Education is committed to ensuring all students have access to meaningful learning free of divisive ideologies and indoctrination,” reads the new webpage, dubbed “End DEI.”

But late Friday, the new document softened the agency’s stance on what exactly could get schools into trouble.

Both the original letter and the new document emphasize that the Trump administration will not stand for racial discrimination, which, on its face, is not a controversial statement. For decades, federal law has barred federal dollars for schools that discriminate on the basis of race.

In the past, the department has focused on discrimination faced by people of color who have historically been subjected to bias and inferior treatment. By contrast, the Trump missives focus more on the diversity, equity and inclusion initiatives created to address and remedy that history. In fact, the administration argues, DEI does the opposite.

On Tuesday, the American Federation of Teachers, its Maryland affiliate and the American Sociological Association asked a federal court to ban enforcement of the Trump guidance. The lawsuit called the document an unconstitutional infringement on free speech and argued it was unconstitutionally vague—not defining, for instance, which practices are banned.

In its new document, the department attempts to clarify what it meant when it suggested practices or even lessons based on the idea that the United States is built on systemic racism are illegal. The department said its enforcement policies will not infringe on teachers’ First Amendment rights to free speech and notes that federal law bars the department from “exercising control over the content of school curricula.”

It offers some examples of what would not be allowed, including some of the most controversial DEI programming.

For instance, it says a racially hostile environment might be present if an elementary school sponsored programming “acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world.”

It added, though, that “similar themes in a class discussion at a university would be less likely to create a racially hostile environment.”

At colleges, it says “more extreme practices” could violate the law, such as segregating students for discussions with guest speakers, pressuring students to take certain positions on racially charged issues, mandating courses or trainings that “are designed to emphasize and focus on racial stereotypes,” or assigning different coursework based on race.

University officials say those situations are rare. But a union attorney critical of the document said it was still unclear whether, say, a mandatory course on multiculturalism that teaches about bias and structural racism would be allowed.

The original guidance was also criticized for stating that “race-neutral” policies—those that do not involve considering race—are illegal if the end goal is to increase diversity. It cited a college that eliminated standardized testing, which the letter said would be “unlawful” if the goal was “to achieve a desired racial balance or to increase racial diversity.”

Many school districts and colleges have adopted race-neutral policies whose results are aimed at diversity—for instance, increased recruitment in areas with more students of color, or new admission requirements to diversify competitive magnet programs.

In the new document, discussion of such policies is much more narrow and follows well-established precedent, which holds that a race-neutral policy is not allowable if it has a discriminatory intent, Li said.

He said that it’s still possible that the department will open cases that seek to push this issue, but that the guidance document makes clear they will use the established framework for analyzing whether policies are legal.