Commentary: Is this what education in a democracy looks like?

On Feb. 14, the Trump Administration sent a Valentine’s Day shocker to American higher education and schools nationwide. The Department of Education sent them a mandate for a new educational orthodoxy, prescribing institutional policies at a level of detail seldom seen in this country.

The Department of Education’s “Dear Colleague” letter, the vehicle through which its Office of Civil Rights communicates policy guidance, delivered a radical redefinition of what it calls “the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the United States Department of Education.”

And, while claiming to take inspiration from the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which curtailed affirmative action in college admissions, the Dear Colleague letter goes well beyond that decision while also ignoring or pushing aside key elements of Chief Justice Roberts’ majority opinion in that case.

As an article in Inside Higher Education notes, “It declared all race-conscious student programming, resources, and financial aid illegal over the weekend and threatened to investigate and rescind federal funding for any institution that does not comply within 14 days.”

The letter “mentions a wide range of university programs and policies that could be subject to an OCR investigation, including ‘hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.’”

In the name of protecting civil rights, the Department of Education letter lays out a vision for education that is hardly democratic. It advances its version of what anti-racism in education looks like and leaves no room for dissent, disagreement, or diversity of views.

Inside Higher Education was right to label the new Department of Education guidance “sweeping and unprecedented.” It turns Title VI of the Civil Rights Act, which the Dear Colleague cites as authority, on its head.

Originally conceived as a tool to protect Black students and other people of color, Trump’s Education Department wants to use it as a weapon to protect white individuals. What the Department of Education did is as much a political maneuver as a legal one. It stokes culture war battles.

That is clear in its claim 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.” The Dear Colleague letter offered no evidence to support this familiar MAGA talking point, even as it accused educational institutions of “smuggling racial stereotypes and explicit race consciousness into everyday training, programming, and discipline.”

As Brian Rosenberg, former president of Macalester College, explains, the letter is “truly dystopian” and, “if enforced, would upend decades of established programs and initiatives to improve success and access for marginalized students,” reports Inside Higher Ed. As a result, it will stir up trouble for schools as they begin to dismantle programs that have been essential in making them hospitable for historically disadvantaged groups.

That is one of its central goals.

Recall that the Supreme Court did not flatly prohibit the targeted use of race in its affirmative action decision. Instead, it said that it would be subject to “a daunting two-step examination known as ‘strict scrutiny’…which asks first whether the racial classification is used to ‘further compelling governmental interests… and second whether the government’s use of race is ‘narrowly tailored.’”

The Court found that Harvard University and the University of North Carolina, the named defendants in the suit, “fail to operate their race-based admissions programs in a manner that is ‘sufficiently measurable to permit judicial [review]’ under the rubric of strict scrutiny.”

The Education Department directive went out of its way to make the “daunting” strict scrutiny test virtually impossible for any school to pass. It pinpointed what it called “nebulous concepts like racial balancing and diversity,” and stated flatly that they “are not compelling interests.”

In Students for Fair Admissions v. Harvard, the Chief Justice left the door open for colleges and universities to pay attention to race in their admissions decisions. As Roberts put it, “Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

“A benefit to a student,” Roberts wrote, “who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university.”

The Dear Colleague letter forecloses even that possibility.

As if addressing the Chief Justice directly, Trump's Department of Education said, “(R)ace-based decision making no matter the form remains impermissible. For example, a school may not use students' personal essays, writing samples, participation, and extracurriculars or other cues as a means of determining or predicting a student's race and favoring or disfavoring such students.”

“Relying on nonracial information as a proxy for race,” the department said, “and making decisions based on that information violates the law.”

Perhaps not surprisingly, the department preferred the approach that was laid out by Justice Clarence Thomas in the affirmative action case. Thomas did not think that the decision applied only to admissions. As he put it, “All forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.”

Thomas suggested that the Court’s decision advanced what he called a “broad equality idea.” And he insisted that the educational decisions of schools and colleges “do not deserve deference.”

The Department of Education’s Dear Colleague letter agrees. It attacks academic freedom by forbidding universities from offering programming and curricula that “teach students that certain racial groups bear unique moral burdens that others do not.”

As the Boston Globe notes “PEN America, a left-leaning free speech advocacy group,” sees the letter as “part of a broader campaign to ‘distort the law and bully educational and cultural institutions. In fact, it seeks to impose its own form of indoctrination on schools and colleges….’”

Indoctrination and democracy do not go together, just like how the government should not tell colleges and universities what they may or may not teach.

That is why colleges and universities need to push back in an organized way. They should use their collective power, mobilize alumni networks, and speak out rather than silently acquiescing.

Beyond regulating academic content, the Dear Colleague letter prohibits “using race in decisions pertaining (not only) to admissions, (but also to) hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student academic and campus life.” To quote Justice Thomas, the letter sees anything to which race can be attached as “creating new prejudices and allowing old ones to fester.”

The Dear Colleague letter is an example of the kind of social engineering that conservatives and MAGA loyalists have long criticized. Government bureaucrats telling colleges how to arrange campus living arrangements or what kinds of support they can and cannot provide for members of the student body hardly exemplifies the “shrink government programs” approach that the Trump Administration is pushing in other areas and it is not the way education in a democracy is supposed to work.

Indeed, leaders in education should borrow from the criticism conservatives have long made of government interference in civil society and use it to their advantage. Where necessary, they should litigate to defend academic freedom and insist that government mandates be reasonable in pursuing a legitimate interest.

Referring to the Dear Colleague letter, Brian Rosenberg says, “In my career, I’ve never seen language of this kind from any government agency in the United States.” However, it would hardly be surprising if the author(s) of the Dear Colleague letter took that observation not as a rebuke but as a high compliment. They would bring schools and colleges to heel and use education to serve their political project.

____

Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.

_____