{shortcode-54bc9a2dfa09ccd25f2b3e2cfc99d8c3f6f3936a}

The Department of Education warned Harvard and other federally funded institutions not to use any race-based decision-making on Friday, arguing in a Dear Colleague letter that all such practices are illegal under the Supreme Court’s decision outlawing race-conscious admissions.

The department’s Acting Assistant Secretary for Civil Rights Craig W. Trainor wrote in the letter that the Supreme Court’s 2023 decision to effectively strike down affirmative action applies to financial aid, scholarships, and housing. He wrote that the department will consider steps to revoke federal funding to institutions found to consider race in their programming after Feb. 28.

According to the letter, educational institutions cannot consider race in decisions about “admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

“Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race,” Trainor added.

While Harvard does not determine financial aid or scholarships based upon race or explicitly consider race after the Court ruled against the University in favor of Students for Fair Admissions, the letter also argued some race-neutral programs could also be illegal.

“Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations,” Trainor wrote. “And race-based decision-making, no matter the form, remains impermissible.”

After the Court’s 2023 decision, Harvard added a required supplemental prompt to its college application asking students to reflect on the “the importance of enrolling a diverse student body” and their own life experiences. While the change reflected guidance from the Court that race could be considered as part of an applicant’s lived experiences, the Friday letter called such practices into question.

In the letter, Trainor wrote that colleges and universities “may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students.”

A Harvard spokesperson declined to comment for this article.

SFFA president Edward J. Blum wrote in an emailed statement that the letter “is likely a prelude to a forthcoming series of detailed directives that will identify discriminatory policies and programs that will be challenged in federal court by the Education Department.”

“Public and private educational institutions that have adopted policies that they consider race-neutral may soon have those policies declared illegal race proxies,” Blum added.

But in an interview with Inside Higher Ed, Blum himself said he did not think the SFFA ruling applies to the programs outlined in the OCR letter on Friday.

Peter F. Lake ’81, a law professor at Stetson University and Director of the Center for Excellence in Higher Education Law and Policy, said that the legal basis for applying the Court’s decision on affirmative action to broader programming — as the Department of Education has done — lies in the Equal Protection Clause.

“Anyone who’s taking Title IV funding — directly or indirectly through student loans or grants — is subject, among other things, to Title VI,” Lake said. “That prohibits race and national origin discrimination.”

Richard H. Sander ’78, a law professor at UCLA, said the Biden administration had not fully enforced the Court’s SFFA decision. According to Sander, the letter signaled a new desire to enforce a prohibition on racial preferences.

“It’s been unclear, almost from the outset, the degree to which Title VI prohibits what we call benign racial preferences,” Sander said. “In other words, is it only intended to protect minorities against deprecations by majorities, or is it also intended to just create a level playing field with non discrimination across the board?”

Trainor wrote that institutions should expect additional legal guidance in the coming days and should audit their programs and practices for both “overt or covert” racial preferences. The OCR gave federally funded institutions two weeks to stop all practices that could be in violation of the guidelines before the Department of Education begins reviewing compliance.

“I want to make sure everybody understands this is not an ordinary Dear Colleague letter. It is a cease and desist letter,” Lake said, arguing that it should be read as a notice of future legal action.

Lake added that “even a school with the resources like Harvard might be challenged to find every pocket” of race-conscious programs on campus.

But with a sweeping list of programs potentially under legal threat for “indirect” racial preference, it is still unclear how this decision will be enforced.

“By virtue of the fact that they’re emptying out a lot of the federal offices, they’re not going to have the staff to pursue enforcement in all these directions,” Sander said.

“I don’t think anybody knows how aggressively this is going to be done,” he added.

—Staff writer Cassidy M. Cheng can be reached at cassidy.cheng@thecrimson.com. Follow her on X @cassidy_cheng28.

—Staff writer Claire T. Grumbacher can be reached at claire.grumbacher@thecrimson.com. Follow her on X @clairegrumbachr.