On Saturday, March 1, 2025, the Office of Civil Rights (OCR) in the U.S. Department of Education released a FAQ about its recent “Dear colleague” letter.
In the letter, issued on Feb. 15, educational institutions receiving federal funds — including preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies — were directed by Craig Trainor, acting assistant secretary in OCR, to “cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond.”
Footnote three of the letter and the FAQ note, “This guidance does not have the force and effect of law and does not bind the public or create new legal standards,” but the body of the letter says educational institutions that fail to comply may “face investigation and loss of federal funding.”
State Superintendent Mo Green’s response to the letter
Superintendent Mo Green sent a response to the letter to school and district leaders in North Carolina on Feb. 21, 2025.
In his response, Green, a lawyer, reviews the laws at issue, notes the OCR letter only offers guidance, and provides a checklist for leaders to ensure compliance. He says his response should not be considered legal advice.
“Education is about opening doors, not closing them,” says Green in his response. “Every decision we make — whether about discipline, curriculum, hiring, or resource allocation — should be grounded in equal opportunity, fairness, and the best interests of students.”
OCR’s FAQ
Most of OCR’s FAQ pertains to Trainor’s interpretation of the law. While that is litigated in the courts, here is what you need to know about the FAQ.
Impact on free speech and curricula
May students, teachers, and school employees discuss topics related to race, diversity, equity, and inclusion?
The answer is yes and the department also does not have control over curricula, according to the FAQ, but OCR says it will be evaluating whether speech and curricula create a “racially hostile environment.”
In the pertinent part, the FAQ says:
OCR enforces federal civil rights law consistent with the First Amendment of the U.S. Constitution. Nothing in Title VI, its implementing regulations, or the Dear Colleague Letter requires or authorizes a school to restrict any rights otherwise protected by the First Amendment.
Additionally, the Department of Education Organization Act, 20 U.S.C. §3403(b), and the Elementary and Secondary Education Act, 20 U.S.C. §7907(a), prohibit the Department from exercising control over the content of school curricula.
— FAQ, Office of Civil Rights, U.S. Department of Education
The FAQ notes, however, that the free speech of students, faculty, and staff, and “the curricular prerogatives” of states and local school agencies may not create hostile work environments, and says “OCR will examine the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved” in its determinations.
How far does the ban extend?
According to the letter and the FAQ, the ban on considering racial preferences extends to third parties and the procurement of goods and services, which includes “after-school programs, substitute teachers, cafeteria services, and special education service providers.”
How will OCR investigate allegations of “covert discrimination?”
OCR says to determine whether a school acted with a racially discriminatory purpose, it may analyze circumstantial evidence to discern whether taken together there is an “inference of discriminatory intent.”
According to the FAQ, the “non-exhaustive” list being used by OCR includes:
1. Whether members of a particular race were treated differently than similarly situated students of other races;
2. The historical background or administrative history of the policy or decision;
3. Whether there was a departure from normal procedures in making the policy or decision;
4. Whether there was a pattern regarding policies or decisions towards members of a particular race;
5. Statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race; and
6. Whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.
The FAQ says the school’s history and policies of using race-based classifications to strengthen diversity, equity, inclusion, and social justice “will be probative in OCR’s analysis of the facts and circumstances of an individual case.”
OCR also says it may apply the following three-step test to assess “indirect evidence of intentional discrimination:”
1. Did a school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races?
2. Then, if so, can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual?
3. Finally, if the school is unable to offer a legitimate, nondiscriminatory reason, or if the offered reason is found to be a pretext or cover for discrimination, OCR will conclude that unlawful discrimination has occurred.
— FAQ, Office of Civil Rights, U.S. Department of Education
What happens if OCR deems a school out of compliance?
According to the FAQ, if there is a determination of noncompliance, then OCR will contact the school.
OCR will attempt to negotiate a “voluntary resolution agreement” with the school.
If the school and OCR can reach an agreement, then a written agreement will be signed including the remedial actions.
After signing the agreement, OCR will monitor implementation.
If an agreement cannot be reached, then OCR will inform the school of the consequences, which will include either OCR initiating enforcement through administrative proceedings or referring the case to the U.S. Department of Justice for judicial proceedings, according to the FAQ.
Here is the 2025 Case Processing Manual provided by OCR, updated on Feb. 19, 2025.
