Trump Department of Education warns schools not to discriminate based on race.

Heed the warning or risk losing federal funds, the Department says.

The Department of Education has issued a “Dear Colleague” letter to schools and other entities that receive federal financial assistance from the United States Department of Education. The letter, signed by the Department’s Acting Assistant Secretary for Civil Rights, informs recipients that they must:

(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.

It adds: “Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.” The letter also instructs recipients that the Department intends to “take appropriate measures to assess compliance. . .based on the understanding embodied in this letter beginning no later than 14 days from today’s date” – i.e., by February 28, 2025.

The letter includes a discussion of the Supreme Court’s decision in the Students for Fair Admissions v. Harvard. Mindful of the ways some colleges are trying to circumvent the holding of the decision, it states:

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

(Emphasis added)

It’s an interesting and important question whether the portion of the letter I just highlighted is consistent with the SFFA v. Harvard majority opinion’s discussion of the use of personal essays in the admissions process. The majority stated that “nothing in the opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise” 600 U.S. at 230.

I suppose colleges like Harvard would say they are not using personal essays — the ones in which blacks talk about overcoming barriers, etc. — to determine race or favor students. Rather, the claim would be, they are using it to determine whether the student has what it takes to succeed at an elite college (or some such thing).

I would have liked the letter to warn colleges, point blank, that (1) if they use personal essays as a backdoor means of favoring black students because of their race, they risk losing their federal funding and (2) the Department is prepared to investigate the way colleges are using personal essays, to make sure they aren’t using them as a way to favor blacks based on race.

The other question I have is how this letter meshes with Donald Trump’s stated intention to abolish the Department of Education. Stated differently, will the Department be around to enforce the warning in the “Dear Colleague” letter? And if not, who will enforce it?

These questions relate to a broader concern. Thoughtful cultural conservatives view the Department of Education as an excellent vehicle for combatting wokeness, DEI, and Critical Race Theory in our schools — where these doctrines are most insidious. If the Department is abolished, that vehicle will no longer exist.

Other agencies could step into the breach. For example, the Civil Rights Division of the Justice Department could bring lawsuits against colleges that discriminate in admissions. In fact, it brought one against Yale during the first Trump administration (the Biden DOJ promptly dropped the case).

But now that the Supreme Court has issued the SFFA v. Harvard decision, further litigation is a less effective means of fighting discrimination than the threat of losing federal funds. And, more generally, the Department of Education is better equipped to focus on a conservative education agenda than any agency that might take over its duties.

These concerns are probably academic (in the colloquial sense). Abolishing the Department of Education would take an act of Congress. It seems highly unlikely that Congress would take that step. It’s not even clear that Trump wants this, although it’s unwise, this time around, to assume he’s bluffing.

Thus, I think the Department of Education will be around to follow through on the “Dear Colleague” letter.

This leads to my final question. Will the Department of Education be able to follow through competently?

I have no inside information on how the Department is being staffed. Craig Trainor, author of the “Dear Colleague” letter, has a background that suggests he knows what he’s doing in the area of civil rights (though, again, I think his letter could have been better).

But will the career employees under his direction have the inclination and motivation necessary to properly investigate whether colleges are complying? Will they have the inclination and motivation, for example, to delve into the nitty-gritty of how colleges are using personal essays in the admissions process?

Fear of losing one’s job or being reassigned to a basement office in Point Barrow, Alaska might be motivation enough. But I don’t discount the possibility of passive resistance once the dust from Trump’s first months settles.