"Dear Colleague:" A look at how he U.S. Department of Education's Office of Civil Rights will seek to undermine civil rights

The U.S. Department of Education has long used a series of “Dear Colleague” letters sent to state and local education officials to outline the Department’s broad policy goals and to explain the Department’s interpretation of federal law and court decisions. Along with the law itself, with non-regulatory guidance issued by the Secretary, with the Code of Federal Regulations, and with findings of the Inspector General, these Dear Colleague letters are a fundamental component of federal, state, and local education governance in the United States.

Unfortunately, this most recent letter from the U.S. Department of Education’s Office of CivilRights is horrifyingly anti-American. Along with the purges of public employees, this letter is a function of ongoing hostile takeover of federal agencies with the intent of destroying them from within and preventing them from implementing the laws enacted by the Congress.

Here are my notes based on my first reading.

LETTER (p. 1): “Discrimination on the basis of race, color, or national origin is illegal and morally reprehensible.”

REPLY: Agreed, so long as we have the same understanding of what “discrimination” means. What we meant we talked about “discrimination” for the last hundred years or so is systematic suppression, neglect, or exclusion of people based on race, ethnicity, color, religion, sex, gender, or national origin. The Department now seems to think that “discrimination” means something else entirely.

LETTER (p. 1): “Accordingly, I write to clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance from the United States Department of Education (Department).”

REPLY: Actually, no. This letter does not seem intended to “clarify or reaffirm” anything. It is instead intended to twist longstanding principles of Americanism by deliberately subverting language, law, and policy in order to promote the Department’s new goal of encouraging schools to suppress, disadvantage, and exclude non-white students.  

LETTER (p. 1): “In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low-income families. These institutions’ embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia. For example, colleges, universities, and K-12 schools have routinely used race as a factor in admissions, financial aid, hiring, training, and other institutional programming. In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities.”

REPLY: This paragraph deliberately and preposterously mischaracterizes the noble work of schools, which have always existed to improve and strengthen our society, our culture, and our nation. This is why public schools at all levels have for generations worked in multiple ways to desegregate American society. In an entirely Orwellian sense, the Department now pretends that working to desegregate schools was actually hurtful and somehow unlawful. This is not only ridiculous, but it is also profoundly evil and one of the most anti-American things to appear in a federal document in quite some time.

LETTER (p. 2) “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.”

REPLY: This paragraph includes numerous falsehoods. Schools simply have not “toxically (sic) indoctrinated students” because indoctrination is the precise opposite of what schools exist to do. Schools exist to give students individual power by freeing them as much as possible of superstition and ignorance and replacing them with intellectual rigor; a foundation in arts, letters, and sciences; and the skills, knowledge, and habits of being good citizens who seek the best for all.

It is in no conceivable way a “false premise that the United States is built upon ‘systemic and structural racism’” because this is instead a simple fact of history. Our nation’s founding documents and principles — including the Constitution itself — specifically recognized and upheld the systemic and structural racism of slavery, and the entire force of federal power was used to protect slavery for most of the first century that this country existed. Moreover, it is also a simple matter of history that after the catastrophe of the Civil War, the initial attempt at Reconstruction failed and was replaced by the pervasive system of systemic and structural racism that came to be called “Jim Crow” and which ruled for most of the second century of this country's existence.

This is how American law and government historically featured systemic and structural efforts specifically and unambiguously intended to deny human, civil, political, economic, and social rights to non-white people, to women and girls, to people of Native tribes, to people of any non-Protestant religion, to people of all manner of sexual and gender minorities, and to people who were immigrants or descendants of immigrants. Pretending that none of this ever happened (or that if it did happen it is no longer of consequence) is absurdly incorrect and deeply corrosive.

Further, the letter then scurrilously mischaracterizes diversity, equity, and inclusion programs. These profoundly patriotic programs all seek to make the American dream real for all citizens, not merely for the privileged. The Department shamefully pretends that diversity is somehow bad, that equity is somehow unfair, and that inclusion is somehow a form of exclusion.

LETTER (p. 2): “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.”

REPLY: The letter now moves into a bit of legal puffery by attempting to expand the badly-flawed Supreme Court ruling in Students for Fair Admissions v. Harvard (2023) and making it even worse. The letter falsely and bizarrely claims that the ruling somehow “applies more broadly” and that addressing (or even recognizing) any kind of racial inequity in any circumstance (even in “campus life”) is somehow unconstitutional. 

LETTER (p. 3): “Other programs discriminate in less direct, but equally insidious, ways. DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.”

REPLY: The letter now attempts to claim that any program or service that helps or recognizes non-white students necessarily hurts white students. This is obviously wrong, and it is hard to understand how anyone could think it. There is no reason at all to imagine that recognizing, say, Black History Month — which exists because Black history was systematically and deliberately excluded from public awareness — somehow “denies students the ability to participate fully in the life of a school.”

LETTER (p. 3): "The Department will no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation’s educational institutions. The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent"

REPLY: As the letter moves into its supposed enforcement section, it claims that it will no longer “tolerate” even “covert” recognition of race. This seems to be an encouragement for Mao-like purity purges of faculty and administrators who acknowledge that racism exists or that students of different races exist in their schools. Apparently anyone who believes that “diversity” or “equity” are good things is somehow in violation of the law and will no longer be tolerated. The Letter goes on to explain that the Department will withdraw federal funding from schools that continue to support diversity.

The letter is signed by Craig Trainor, a newly-appointed partisan attorney associated with multiple extreme-right groups including the America First Policy Institute (a Trump policy group run by Linda McMahon, soon to be the new U.S. Secretary of Education), The Fairness Center (a law firm apparently founded to oppose unions), and the Federalist Society (which packs the judiciary with far-right ideologues).  

The U.S. Department of Education’s Office of Civil Rights has a proud history of working to make schools better for all. This Dear Colleague seeks to destroy that history and that goal.