The Worst Thing That Can Happen Is Mass Capitulation
Q&A with a legal expert on that "Dear Colleague" letter.
The Trump administration’s release of a “Dear Colleague” letter from the Education Department’s Office of Civil Rights has sent institutions scrambling after being given 14 days to comply with executive branch directives around its (rather warped) interpretation of laws preventing discrimination under Title VI of the Civil Rights Act.
It is a fraught moment for higher education institutions as they find themselves under direct attack by the federal government. How institutions respond to these attacks will shape not just the immediate operations of colleges and universities, but what students they serve for generations going forward.
Sowing confusion is part of the Trump administration's strategy, so we at the Center for the Defense of Academic Freedom are trying to provide additional information and context where we can. Earlier, we launched Executive Power Watch, our analysis and guidance regarding Trump's executive orders targeting both K-12 and higher education.
Today, we have a Q&A with an expert in the issues raised by the Dear Colleague letter, his name is Michael Warner, and he’s had a 30-plus year career as a labor and employment attorney for both private and public sector clients, including schools and higher education institutions. He’s a partner at the Franczek law firm in Chicago and is also my older brother who once chased me around the block threatening to beat me up after I defeated him in a basement ping pong match. I eventually escaped harm thanks to mom coming home.
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John Warner: I’m curious if my memory is the same as your memory of that incident.
Michael Warner: I thought it was air hockey, but regardless with age we’ve become less competitive and more complementary of each other’s unique talents.
JW: This is true, which is why I’m often coming to you for advice on legal matters. Does it bother you that every time I have a legal question I come to you and expect a near instantaneous answer?
MW: Not at all, while the partners at my law firm may have some misgivings because you are not paying my firm, I often find your questions more interesting than my day-to-day legal work. From a lawyer’s perspective, the questions raised by the Trump administration’s unprecedented actions, while extremely troubling in their potential implications, are fascinating from an intellectual standpoint.
JW: Sometimes my questions (e.g. Can I sue my neighbor for using a leaf blower while I’m trying to work?) are outside your area of expertise, but in this case, the recently released “Dear Colleague” letter directly impacts your area of practice.
MW: For 30-plus years, my practice has focused on representing employers and educational institutions in labor and employment and student-related matters so I’ve been wrestling with these issues my entire career.
JW: Let’s start with the basics. What is a “Dear Colleague” letter? How does it differ from an executive order or some other executive branch proclamation?
MW: A Dear Colleague letter is a tool that has historically been used by the Office of Civil Rights of the Department of Education to provide legal guidance and to outline enforcement priorities. A Dear Colleague letter does not have the “force of law” in and of itself and is not self-executing. Other agencies use Dear Colleague letters or similar communication methods (for example the General Counsel’s office of the NLRB (National Labor Relations Board) issues “General Counsel” memos). While an overgeneralization, it generally would be considered less “binding” than an EO (assuming that the topic of the EO is within the scope of the Executive branch’s authority, which cannot be presumed in this day and age).
JW: Is Trump truly doing something novel through his executive orders?
MW: My perception has been that the Trump EOs, Dear Colleague letter, and other executive branch pronouncements do not just reflect a difference in policy priorities from the prior administration (which is to be expected), but they are much more conclusory and threatening in tone and intent. They make definitive (but often unsupported) legal pronouncements and directly threaten consequences for those who do not comply.
To confirm my belief, I went to the DOED website to view old Dear Colleague letters. Perhaps not surprisingly (and somewhat ominously), the links to old DCLs are dead, which is somewhat ominous in and of itself. See: https://www.ed.gov/laws-and-policy/civil-rights-laws/resources. After some sleuthing, I was able to find a DCL from 2011 with the following legend at the top: “Rescinded: This document has been formally rescinded by the Department and remains available on the web for historical purposes only.” A cursory review confirms that it is much more informational in tone and substantive in its discussion of applicable legal principles and citations to supporting authority. https://www.ed.gov/sites/ed/files/about/offices/list/ocr/letters/colleague-201104.pdf
JW: From a legal perspective, what is the gap between what the Trump administration is ordering institutions to do in the Dear Colleague letter and what you believe to be truly grounded in the law as it stands today?
MW: The summary of SFFA (Students for Fair Admissions) v. Harvard in and of itself accurately states existing law (as determined by the Supreme Court), including that intentional race discrimination, is unlawful, and this includes using race as a criterion in admissions even if intended to benefit historically disadvantaged groups or enhance diversity. Other pronouncements are not only unsupported by existing law but directly contrary to existing case law.
JW: So what are the problematic parts of the Dear Colleague letter?
MW: There are several, but one that immediately stood out for me was the sentence: “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”
Contrary to this statement, admissions or employment criteria that are shown to have a statistically significant disparate impact based on race or another protected category and are not justified by a compelling legitimate educational or business rationale have long been unlawful under Title VI (for education) and Title VII (for employment). A policy or practice that has such a disparate impact is legal only if the employer/educator can show, for example, that it is a valid predictor of success.
This means that if an institution uses admission criteria that exacerbate or maintain an existing racial imbalance in its student body and those criteria are not a valid predictor of academic success, the use of those criteria is unlawful under existing case law and should be eliminated or changed. The Dear Colleague letter implies, if not directly states, the exact opposite: that the elimination of a test that has been shown to create a racially disparate impact is unlawful.
The conservative faction on the Supreme Court has long had this “disparate impact” theory of unlawful discrimination in its sights, but what is stated in the Dear Colleague letter is what many on the right think the law should be, not what it currently is.
This is particularly concerning when it comes to traditional civil rights enforcement in the education context (as opposed to employment) because prior Supreme Court case law holds that only the federal government has the authority to sue educational institutions that receive federal funds under this “disparate impact” theory and private plaintiffs can only bring claims of intentional discrimination. This effectively signals to schools that they will not be held accountable if they maintain criteria that discriminate against historically disadvantaged groups, but they will be subject to federal scrutiny and potential loss of federal funding if they engage in affirmative efforts to root out criteria that may be exacerbating or preserving historical racial imbalances.
JW: That sounds like a Catch-22 to me.
MW: Exactly. Although existing case law dictates that institutions violate the law if they rely upon admissions criteria that perpetuate existing racial imbalances, the current administration is signaling not only are they not going to enforce existing law around discrimination, but that efforts to comply with the correct and longstanding (Pre-Trump) interpretations of current law could be punished.
JW: Obviously institutions don’t want to see the federal government bring the hammer and would like to comply with any genuinely legal guidelines, but there is an obvious risk of overshooting the mark.
Recognizing that this is your opinion and not actionable legal advice, I’m curious what you think about this story, which says that the University of North Carolina System is removing any courses even tangentially related to diversity, equity, and inclusion from “requirements.”
MW: This also highlights another legally dubious pronouncement in the Dear Colleague letter. As with so many of the administration’s recent actions, the goal, and unfortunately the effect, is “pre-compliance” in which impacted parties would rather obey in advance regardless of whether the administration’s stated legal position is accurate or well founded. See also Bezos’s revoked Washington Post endorsement for Kamala Harris as a prominent example among many others.
Putting aside whether requiring mandatory diversity, equity, and inclusion-related classes as part of a general education curriculum is a good idea from an educational, pedagogical, or institutional standpoint, I have a hard time imagining a diversity, equity, and inclusion course that would be so one-sided or offensive that requiring the course to obtain a degree would be unlawful. Although the Dear Colleague letter states that such programs may “stigmatize students who belong to particular racial groups based on crude racial stereotypes,” there is strong legal authority that such “stigmatization” standing alone, does not violate the law absent a showing of tangible harm. While civil rights advocates have long viewed such precedents as being an impediment to efforts to eliminate true discrimination and injustice, these cases may serve as a bulwark against the Trump administration’s overreach.
To the extent that OCR (Office for Civil Rights) is saying that course offerings or content in and of itself can violate Title VI (or to the extent UNC or other institutions are reading OCR’s pronouncements this way), this appears to be a real threat to academic freedom and also contrary to a long line of case authority recognizing the discretion that educators should have in making curriculum decisions. It also raises significant First Amendment concerns, particularly as to enforcement actions against private institutions.
JW: Education and civil rights lawyer Jackie Gharapour Wernz suggests another possible wrinkle, that the Trump administration is busy gutting the very federal offices that could even investigate these things. What’s your take on that?
MW: Jackie is very wise and I used to work with her at my firm. Like Jackie, my hope is that many of the administration's pronouncements end up being “hollow threats” for this very reason. According to recent reports, only 20 new investigations have been opened by OCR under the new administration all of which focus on the administration’s priorities, such as reversing protections for transgender students in the name of preventing “harassment” of cisgender women.
JW: Again, with all the caveats that this isn’t specific legal advice, but from the perspective of a lawyer, what do you recommend? In my post at Inside Higher Ed, I argued that it’s a fool’s game to think that the people who are trying to destroy you are going to stop if you just try to make yourself a smaller target. As AAUP President Todd Wolfson put it in a statement, this is nothing less than a full-on attack on civil rights in education. To me, this is an outright authoritarian project, and it’s incumbent on democratic institutions like colleges and universities to resist with everything they have, rather than trying to ride out the storm. But how does a lawyer see it?
MW: As someone who fervently believes in the fundamental principles of our democracy and the rule of law, I couldn’t agree more. I hope that, at a minimum, institutions “hold the line” or even expand existing, lawful diversity, equity, and inclusion efforts as defined by the courts, rather than the Trump administration. To prepare to ward off any challenge, educational institutions should inventory all diversity, equity, and inclusion work, and assess whether small tweaks need to be made to strengthen the defense of the programs. While OCR investigations can be time-consuming and a resource drain, given the legally dubious underpinning of many of the Dear Colleague letter’s pronouncements, I’m cautiously optimistic that those who choose to fight will end up strengthening both their own institution as well as the rule of law generally in the long term. The worst thing that can happen is mass capitulation.
The views expressed in this newsletter are those of individual contributors and not those of the American Association of University Professors (AAUP) or the AAUP’s Center for the Defense of Academic Freedom.