Last Tuesday, February 25, 2025, the American Federation of Teachers and the American Sociological Association filed a lawsuit to challenge a confusing and frightening “Dear Colleague” letter sent to universities and K-12 public school leaders across the United States by Craig Trainor, the Acting Assistant Secretary of the U.S. Department of Education’s Office for Civil Rights (OCR).

The Washington Post‘s Laura Meckler reports: “A lawsuit filed Tuesday accuses the Trump administration of trying to radically rewrite well-established civil rights law when it issued a sweeping directive barring colleges and K-12 schools from considering race in virtually any way. The guidance from the Education Department’s Office for Civil Rights was sent as a ‘Dear Colleague’ letter to school officials throughout the country Feb. 14. It threatened to deny federal funding to any school or college that considers race in hiring, discipline policy, scholarships, prizes, or any other aspect of campus life. It gave schools a two-week deadline to comply, setting off confusion and panic on campuses nationwide.”

Here are two of the ways Craig Trainor’s February 14th “Dear Colleague” letter challenges civil rights protections for students.

First, the “Dear Colleague” letter—that claims to represent the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which banned affirmative action in college admissions— goes much farther than that 2023 affirmative action decision has previously been interpreted. The  Harvard affirmative action decision banned the use of race itself as the way to encourage racial balancing in college admissions. You may remember that in a 2007 precedent-setting Supreme Court affirmative action decision, Chief Justice John Roberts declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The Washington Post‘s Laura Meckler and Susan Svrluga explain how, since that 2023 Supreme Court decision, universities and school districts have successfully until now tried to achieve diversity by using other strategies: “Some universities responded to the decision by embracing race-neutral efforts to create a diverse class of students. Those included increasing financial aid for low-income students, recruiting from a wider ranges of places, investing in programs intended to help disadvantaged students and encouraging students whose parents did not go to college to apply.”  Some public school districts have also, for example, tried to achieve school diversity by setting school boundaries that encompass economically diverse neighborhoods.

Chalkbeat‘s Erica Meltzer describes constitutional law professor, Derek W. Black’s analysis of how the “Dear Colleague” letter would undermine schools’ efforts to ensure a diverse student body: “(F)or nearly two decades school districts have believed they are in a legal ‘safe harbor’ when they use non-racial criteria such as household income and ZIP code to diversify their schools, Black said. ‘This letter is saying, ‘You don’t even have safe harbor anymore… That’s a mind-blowing, incorrect statement of the law.’ ”

A second way the “Dear Colleague” letter would would affect universities and K-12 public schools is not only by threatening to ban any federal funding from schools that use race as a factor for admissions or other administrative purposes, but also by putting at risk schools whose curricula or programs touch on race and diversity. Under the “Dear Colleague” letter it is absolutely unclear what sort of practice would threaten a school or a school district’s funding. Meckler describes how the lawsuit filed last week by the American Federation of Teachers addresses this issue: “The suit lays out a number of legal claims, including that the Dear Colleague letter infringes on teachers’ free speech rights and that the guidance is so sweeping that it amounts to a regulatory action that should be subject to rules requiring public comment. The suit also argues that the letter is unconstitutionally vague. It never defines, for instance, what it means by prohibited diversity, equity and inclusion, or DEI, practices. It’s therefore unclear, the suit says, whether a range of common activities now risks a loss of federal funding, such as a university department of African American or Jewish studies, a Lunar New Year celebration, a conversation between a high school counselor and student about race or racism, or a tutoring program that serves mostly students of color.”

Although Trainor’s February 14, “Dear Colleague” letter provided a two week deadline for universities and K-12 schools to amend their practices or lose federal funding, Education Week‘s Brooke Schultz explains why no college or K-12 public school or school district lost funding this past Friday, February 28: “Cutting off funds to school districts is a multi-step process. It’s not possible for the  executive branch to unilaterally pull funding. The Office for Civil Rights must first investigate allegations, find a violation, and also find that the school is refusing to address it… Through case law and regulation, the department can’t cut all funding to a school, either, to keep from harming innocent students and staff, and to prevent vindictive or punitive use of OCR investigations.”  Still, University of Pennsylvania law professor, Cara McClellan, “expects a widespread ‘chilling effect’ from the letter even though it doesn’t accurately describe the law. Its description of a colorblind society flies in the face of history and data about persistent inequalities.”

Education historian, Diane Ravitch reminds school district leaders that the federal government cannot legally prescribe any public school  curriculum. She explains that Trainer’s letter, “fails to mention that since 1970, the U.S. Department of Education has been subject to a law that states clearly that no officer of the federal government may interfere with what schools teach.  The law states: “No provision of any applicable program shall be construed to authorize any department, agency, officer, employee of the the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, (or) administration… of any educational institution… or over the selection of library resources, textbooks, or other printed or published instructional materials.”

Ravitch adds: “The ideas of diversity, equity, and inclusion are generally and broadly accepted by the public. They were not hatched by the Department of Education. They are baked into our American ideals of fairness and justice and opportunity for all. The fact is that our nation is diverse. Banning the word doesn’t change the reality. We are a nation whose population includes people of every race, religion, and ethnicity. We are a nation of men and women as well as people who are LGBT.”

Myriad law professors and civil rights attorneys have condemned  Trainor’s “Dear Colleague” letter. In a NY Times opinion column, University of Chicago law professor Sonja Star explains: “The Supreme Court’s affirmative-action decision in 2023 did not render racial diversity an unlawful interest—indeed, it described that interest as ‘commendable’ and ‘worthy.’ Courts have long distinguished between ‘benign’ racial objectives (such as diversity) and ‘invidious’ ones (such as segregation).”

The Lawyer’s Committee for Civil Rights Under Law’s Sumayya Saleh implores school districts: “I think it’s important for school districts not to recoil or engage in self censorship, so to speak, just because this guidance has been issued… I think it’s important for them to examine and explore what the law actually holds….”

Constitutional law professor, Derek Black addresses K-12 school leaders: “If you think that for your community of 30,000 students… it’s important for you to do as much as you can within the law to ensure racially equitable access, if that’s what you believe, and that’s what the social science tells us you should doing to help all children achieve, then you’ve got to stick by your guns because you’re right on the law… What you really have is a department that is trying to cement its world view about race on top of a set of laws that don’t match up with their views.”

As the month of March begins, there are reports that over the weekend, President Trump’s Department of Education replaced Trainor’s original “Dear Colleague” letter with a new document that perhaps does not so seriously violate civil rights law.  We must continue to pay attention as Trump’s attempt to quash decency, equality, and inclusion in U.S. public schools evolves.