Brian Sandberg: Historical Perspectives

President Trump’s Department of Education is subverting established U.S. Civil Rights Law.

Craig Trainor, Acting Assistant Secretary for Civil Rights at the Department of Education, has sent an outrageous “Dear Colleague” letter to all institutions of higher education in the United States.

The Acting Assistant Secretary for Civil Rights claims (incorrectly) that “Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of ‘diversity, equity, and inclusion’ (‘DEI’), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”

The “Dear Colleague” letter continues: “But under any banner, discrimination on the basis of race, color, or national origin is, has been, and will continue to be illegal.”

Trainor focuses on a controversial 2023 Supreme Court decisions and attempts to broaden its applicability far beyond the original language of the decision.

“The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA), which clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI. The Court explained that ‘[c]lassifying and assigning students based on their race’ is lawful only if it satisfies ‘strict scrutiny,’ which means that any use of race must be narrowly tailored—that is, ‘necessary’—to achieve a compelling interest. To date, the Supreme Court has recognized only two interests as compelling in the context of race-based action: (1) ‘remediating specific, identified instances of past discrimination that violated the Constitution or a statute”; and (2) ‘avoiding imminent and serious risks to human safety in prisons, such as a race riot.’ Nebulous concepts like racial balancing and diversity are not compelling interests. As the Court explained in SFFA, ‘an individual’s race may never be used against him’ and ‘may not operate as a stereotype’ in governmental decision-making.”

According to Trainor, “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to 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.”

The Acting Assistant Secretary asserts that “This letter provides notice of the Department’s existing interpretation of federal law. Additional legal guidance will follow in due course. The Department will vigorously enforce the law on equal terms as to all preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies, that receive financial assistance.”

The Acting Assistant Secretary then threatens all universities directly:

“The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.”

Civil Rights leader Rev. Earle J. Fisher responds directly to the letter: “Make no mistake. This is not about fairness; it’s about erasure. It’s about rolling back decades of progress and silencing the very institutions that have fought to level the playing field.”

Fisher points out that ‘Trainor’s letter invokes the language of the Civil Rights Act of 1964 while twisting its intent beyond recognition. He writes, ‘This letter explains and reiterates existing legal requirements under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities.’ However, Title VI was designed to dismantle racial discrimination, not to prohibit corrective measures that address centuries of inequity. Trainor and the Department of Education now argue that race-conscious policies, even those explicitly aimed at remedying historical injustices, are unlawful. They are citing civil rights law to justify rolling back civil rights progress.”

Fisher calls for action to block the Trump Department of Education’s perversions of U.S. Civil Rights Law: “The policies outlined in the directive from the Education Department are an extension of a broader movement to roll back racial progress in every sector of society, including progress made in voting rights, economic justice and criminal justice reform. We cannot allow this to stand.”

The “Dear Colleague” letter is also an direct assault on academic research, research funding, educational rights, student scholarships, university autonomy, and academic freedom.

United States historians, constitutional lawyers, higher education researchers, university administrators, and professors are all responding to the “Dear Colleague” letter. I will attempt to update this post with links to additional perspectives soon.

Meanwhile, universities across the United States will be grappling with the implications of this outrageous subversion of Civil Rights Law.

Acting Secretary Craig Trainor’s “Dear Colleague” letter is posted on the website of the Department of Education.

Shaun Harper, Professor and Clifford and Betty Allen Chair in Urban Leadership (Univesrity of Southern California), has published a “Dear Colleague” letter in response at InsideHigherEd, providing suggestions on steps that universities can take to defend Civil Rights and higher education.

dotEDU Live hosted a discussion of “The Future of Campus Diversity and Student Support” discussing these issues.

Scott White published an article on “Colleges React To Perceived Over-Reach Of Education Department’s ‘Dear Colleague’ Letter,” in Forbes.

The Chronicle of Higher Education offers extensive reporting on the “Dear Colleague” letter and responses to it. However, their articles are behind a paywall, so access those reports via your local university library.