This analysis was prepared by Venable, LLP on behalf of AACOM.

Summary: U.S. Department of Education FAQs About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act

March 7, 2025

On February 28, 2025, the U.S. Department of Education (ED) Office of Civil Rights (OCR) published a frequently asked questions (FAQs) document to provide informational guidance on questions that may be raised in response to OCR’s Dear Colleague Letter on Title VI of the Civil Rights Act in Light of Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College (Students v. Harvard).  The FAQs clarify OCR’s interpretation of the Supreme Court (Court) ruling in Students v. Harvard, outline the scope of Title VI protections, and detail how ED will monitor and evaluate schools’ compliance with these protections.

The text of the FAQs is available here, and the Dear Colleague Letter can be found here.

This document is not a direct review of the “Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College” case or an analytical interpretation of ED’s FAQs. It is solely a summary of ED’s conclusions set forth in the FAQs.  

Decision in Students v. Harvard

The Court held that the admissions programs in question violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act by considering race in admissions decisions, emphasizing that students should be evaluated as individuals, not based on race. In the decision, the Court declared the programs unlawful because of reliance on racial stereotypes, adverse impact on certain racial groups, not being sufficiently measurable, and lacking a logical endpoint.

On racial preferences more specifically, the Court articulated the following:

• A school may never use a student’s race as a “stereotype or negative,” meaning that assumptions about a person’s race cannot be used to infer that person’s perspective, background, experiences, or socioeconomic status.
  • College admissions processes cannot treat membership in any racial group as a plus factor, since that inherently disadvantages individuals that are not in that racial group. 
• Distinctions made solely on race are violative of the principles of equality and raise constitutional concerns under the 14th Amendment, triggering “strict scrutiny” judicial review which requires any racial classification to serve a “compelling government interest” (e.g., remediating specific past discrimination held to be constitutional or statutory violations) and be “narrowly tailored” to achieve that interest. 
• In reviewing for a compelling government interest, the Court determined that “diversity” is insufficiently compelling and “standardless.”
• In reviewing for narrow tailoring, the Court noted overbreadth like grouping all Asian students together, under inclusion by excluding Middle Eastern students, and inconsistencies in the definition of “Hispanic.” Accordingly, the Court held that race cannot serve as a proxy for socioeconomic disadvantage due to available race-neutral alternatives.
• The Court noted that race-based policies must be time-bound and cannot be applied indefinitely.

Applicability to Equal Protection Clause and Title VI 

The Court held that Title VI is “coextensive” with the Equal Protection Clause of the 14th Amendment. Meaning, if a discriminatory action violates one, it also violates the other one as well. 

Title VI applies to “any program or activity receiving Federal financial assistance” from ED.  Accordingly, both public institutions and private institutions receiving federal financial assistance, including all levels of education from pre-K through postsecondary, must comply with Title VI.

Title VI and Third Parties

The FAQs state that schools may not engage in racial preferences directly or indirectly through third parties (such as services being provided to the school and students via a contract or other arrangement). Schools must ensure nondiscrimination based on race, color, or national origin when selecting contractors for services like after-school programs, substitute teachers, cafeteria services, and special education services. 

Application of Race as a “Stereotype or Negative”

The FAQs state that a person’s race should not necessarily imply that the person has certain personality traits, views, characteristics, or values, generalized because that person is of a certain race and racial classifications risk becoming unlawful stereotypes when lumping students into categories that are overbroad, underinclusive, or arbitrary and undefined. 

Further, the FAQs conclude that a school cannot legally consider a student’s race in distributing benefits or resources, as favoring one race in a competitive process will inherently disadvantage others. Schools maynot administer or advertise scholarships, prizes, or other third-party opportunities based on race.

The Court stated that schools can consider applicants' discussions of race in admissions essays (e.g., discussion of how race affected the applicant’s life) while at the same time prohibited schools from using the essays to bypass ban on racial preferences (no essay loophole). Thus, schools may credit what is unique about an applicant in overcoming adversity or hardship and how that may allow that particular applicant to contribute to the university, but never credit the person’s race. 

Separation and Segregation of Students by Race

The FAQs state that segregation is illegal and schools cannot engage in activities like programming, graduation ceremonies, or housing that separate or exclude persons based on race, even if the activities are seemingly equal or intended for a beneficent purpose.  Therefore, the FAQs conclude that school-sponsored or endorsed racially segregated aspects of student, academic, and campus life violate Title VI.

DEI Policies and Programs

According to the FAQs, whether a policy or program violates Title VI does not depend on whether a school uses terms like “diversity,” “equity,” or “inclusion.” Rather, OCR will assess school policies and programs on a case-by-case basis evaluating facts and circumstances. Schools cannot implement policies or programs that discriminate based on race, use racial stereotypes, or create hostile environments for specific racial groups.

ED does not exercise control over the content of school curricula. In determining whether a racially hostile environment exists, OCR will assess each case evaluating facts and circumstances, including the nature of the school, the age of the students, and the relationships of the individuals involved. The FAQs offer the following examples:

• An elementary school that sponsors programming that acts to shame students of a particular race or ethnicity could create a racially hostile environment.
• A university that is pressuring students to take certain positions on racially charged issues could create a racially hostile environment.

The FAQs conclude that schools are prohibited from discriminating against students based on race when deciding disciplinary actions or sanctions. 

OCR Investigations and Enforcement

OCR may analyze evidence to determine discriminatory intent that includes (but is not limited to): (1) whether members of a particular race were treated differently than similarly situated students of other races; (2) the history of the policy or decision; (3) departure from normal procedures; (4) pattern regarding policies or decisions toward students of a particular race; (5) statistics demonstrating a greater impact on students of a particular race; (6) a knowledge standard of whether a school was aware of or could foresee the effect of the policy or decision on students of a particular race.

OCR may also apply a three-step process:

1. Did a school treat a student(s) of a particular race differently than similarly situated student(s) of another race?
2. If yes, can the school provide a legitimate, nondiscriminatory reason?
3. If the school is unable to offer such a reason, or if the offered reason is found to be a pretext or cover for discrimination, OCR will conclude that unlawful discrimination has taken place. 

In the case that OCR concludes that unlawful discrimination has occurred, it will contact the school and request the school participate in negotiating a voluntary resolution agreement. OCR would monitor implementation of the agreement’s terms. In the instance that a school does not negotiate a resolution agreement, OCR will inform the school of the consequences, including any enforcement action through administrative proceedings or referring the case to the Department of Justice. 

Reporting and Contact

Anyone who believes that a school has engaged in discrimination may file a complaint with OCR using this link to the online complaint form.