A Year After the February 14, 2025 USDOE Dear Colleague Letter and Title VI Coordinators

Transcript

Carol Ashley

Of counsel, Washington, D.C. Region

Hello everybody, my name is Carol Ashley. I am an attorney here at Jackson Lewis in our Washington, D.C. office, but obviously, we work across the country with many clients. We are talking today about the anniversary of February 14th, 2025, when the DOE essentially set out its new approaches under the Trump administration related to diversity, equity, and inclusion (DEI). Really, broader than that, how are we going to assess Title VI given the Trump administration's approach and guidance? On February 14th, 2025, there was a Dear Colleague letter that was issued, and it covered these issues. Today, we're going to revisit that. There was also an FAQ that was issued on February 28th, 2025, that addressed these kinds of issues. We want to take stock and look at where we are now, about a year later and how schools, both K-12 and post-secondary schools, have been addressing the guidance.

By way of introduction, I should say that my practice areas include schools, elementary, private elementary, and also all post-secondary kinds of schools. I had a stint at the U.S. Department of Education as an enforcement director overseeing multiple regional offices from 2015 to 2021, so crossing multiple administrations. I say that because it's helpful to some of the discussions we're going to have today.

With that, I'm going to let my wonderful colleague, Dani Bland, introduce herself as well.

Dani Bland

Associate, Raleigh

My name is Dani Bland, and I work in Jackson Lewis' Raleigh office in North Carolina. Similar to Carol, I am a member of our Education and Collegiate Athletics Group. I work with Carol, even though we're in separate offices; that's one of the great features of our JL team. Today, we're going to get into these issues that she's discussed with this Dear Colleague letter from 2025.

Ashley

As a starting point, the reason why schools had to really focus on this letter in terms of their practices is that the Dear Colleague letter essentially takes the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Supreme Court decision, and applies it to any kind of school program or activity. That includes everything from housing, student programming, and everything that the campus is really dealing with. Of course, that's in the umbrella of Title VI, which prohibits discrimination based on race, national origin, and that can include shared ancestry; it really is extensive. It's a large portion of what schools do. Of course, that applies not only to student body issues, but it can also apply to issues that involve faculty, it's campus-wide. It has a broad reach, and schools spent a lot of time in the first quarter last year and in the second quarter really trying to make sure they were understanding the guidance and assessing the guidance in terms of their programs.

What we saw is schools taking a look at what their publications stated or their website stated about any kinds of programs related to race, national origin or shared ancestry. Of course, there's also a tie-in here. The October 7th violence that happened in 2023 spilled over into our campus environments. We saw obviously campus protests and lots of activity. The aftermath of that certainly is in the backdrop of what we're seeing with this guidance. In fact, we know that you know, there are about 60 schools that were under OCR investigations related to those October 7th campus activities. There is some connective tissue between those two sets of issues. What we saw schools do is again, focus on their publications to make sure that what they were saying was not discriminatory in any way. We've seen schools make modifications to their diversity, equity, and inclusion offices, the individuals who actually perform those functions on campus. We saw some campuses move away from those positions. We saw some campuses embrace those positions. We really saw a spectrum of activity. 

Again, we just wanted to take a look at where we are now, a year or so later. Dani, one of the things that we have seen is the development of a Title VI coordinator. The Title VI regulation does not require schools to have coordinators, and of course, Title IX does require a coordinator, as does Section 504. But we have seen schools move to a Title VI coordinator for a couple of reasons. One, because that title was included in some of the resolution agreements with some schools early on. We have also seen some schools that want to do that because this area is being so closely monitored. They want to make sure they're monitoring it correctly. I will say from my experience at OCR, technically, there's never been a Title VI coordinator, but there have been schools that have had that before. There have been schools that have maybe had somebody functioning in that role, but not that title. There’s no room to say that it is a new position; it probably wasn’t used often, but there is some precedent for it, I should say.

Dani, can you talk about some of the distinctions between what a Title VI coordinator, Title IX, and a Section 504 coordinator are, or what the regs say about that? What's the difference there?

Bland

Under Title IX, a requirement has been codified to have a coordinator at every institution to which Title IX applies. Section 504 of the Rehabilitation Act requires a designated person to handle these issues. It doesn't necessarily have to be titled as a Section 504 coordinator, but they require that a school disclose and designate someone to handle issues that come up relating to disability and accessibility matters. Title VI doesn't have any regulations at all. That's the big difference here. There are, first, there's no federal requirement to have what we're terming a Title VI coordinator. There is one state to date that requires it, which is New York. They required it from the middle to the end of 2025. They passed a law requiring that for its New York institutions. Further state legislation on this is definitely something that's possible. Since we've seen it in one jurisdiction, it's possible that it could come to other jurisdictions. We are seeing a lot of schools, with the increased focus on Title VI, think about designating someone to the point that all that person is doing is Title VI activities, so they're thinking of designating them as a Title VI coordinator. The big difference would be that it's not like they have regulations in place that they are referring to to help guide them in those activities. There's a lot more consideration for the school and maybe the people in those roles of what we should be evaluating and what action we should be taking. There's less in terms of legal regulations compared to the way a Title IX coordinator closely consults the Title IX regulations, and the same with the 504.

Speaking of Title VI coordinators, some schools have been adding that position or rethinking how they handle those activities in schools. What would you recommend schools be doing with Title VI coordinators or those types of functions that a Title VI coordinator would have?

Ashley

It sounds easy to add a Title VI coordinator, since we already have these other coordinators. However, it's more complicated than that. You have to assess how your school is functioning. The Title IX regs are so specific about what a coordinator has to do. I don't know if replicating that makes sense at every school, like taking it to that level and degree. That's not to say the issue isn't important, but some of the operational and procedural pieces, I am not sure you want to mirror everything, but that's actually a decision point. You have to think about how at the school, we want to provide processes that are similar to Title IX because we want to communicate that this is important to all of our students. Or if you're not going to do all of those layers that are involved in a Title IX process, how are you going to distinguish? What rationales will you have in terms of why you do something a certain way, like without perhaps a written report that maybe you would have considered under Title IX? Those are pieces that really are unique to each institution. Thinking through how you want to implement a Title VI coordinator, again, is nuanced. There are some pieces, like some institutions that converted their DEI function to more of a Title VI coordinator type role, and that worked for them. Again, it really always depends on what activities the previous administrator was doing. If it works, that might be one avenue. However, you may have to recreate or create a whole new position that you're going to have to think through what our process is going to be in terms of how we're going to investigate when we get complaints of race discrimination, shared ancestry, or national origin discrimination.

One of the things you and I have talked about is that we always have to be careful because you have a community. You don't want to make one segment of your community feel like they are more important than any other segment of the community. If you don't have a Title VI coordinator, do people feel like you're not supporting our issues or things that we're concerned about or issues that may be on our campus? Or maybe your school has done a great job of always responding to any kind of issue, no matter what column it's in, but how you respond through the Title VI coordinator, to whom will that person report in the institution? Are they going to sort of have the same timelines that you expect in a Title IX case? How is disability coordinator functioning? Are they aligning with the other two? All of those little pieces, it's all those little details that matter.

Bland

Yes, or even questions like, would you house the Title VI coordinators under the same department, or even just outside of reporting structure, what department are you putting them in? Or maybe if you're a larger institution or a smaller institution, the facts definitely change depending on your environment and maybe what the recommendation would be. If you have a school that's a big research school, maybe you've gotten a lot of different alignment with some of those positions that you wouldn't have if you're a much tinier school or have a different focus or different types of institutions involved within your academic institution.

Ashley

Dani, you're raising a different point, how you're resourced. Are you able to create a new position? Or is it going to become somebody else's part of their already existing functions? Those details that have to be worked out.

One other thing, Dani, that we've been talking about is what are some of the pitfalls? We've talked a little bit about that, but I want to just focus in on those and make sure whatever you're doing sends a community-wide message and doesn't highlight one group over another.

Bland

It's important to be paying attention and reacting to current and recent events that are going on and handling those complaints or issues as they arise, but making sure you're not tunnel visioning and only looking at that. For example, we've gotten a lot of shared ancestry complaints recently, but let's make sure we're also still paying attention to all of the other types of national origin or race or color complaints that could be coming in and make sure it's not looking like, well, only the shared ancestry type complaints matter. Just making sure that you are paying attention to where you're seeing increases or things like that, but making sure all of the other processes are still in place. Not only are they in place, making sure that in practice people feel that, okay, but you would also still take that seriously. Making sure your campus community feels that they can still use those processes and they would be just as valued and go through the same way as if they were one of the more topical issues, at whatever moment it is.

Ashley

Going back to the beginning of why we're here, talking about this a year later. As we said, we saw schools looking at their websites, clarifying terms on their website, so that if there's a change post the guidance of the letter, it is that schools went back and made sure that they understand what their intentions are. It's clear that instead of just using the word DEI, describing what they mean by DEI. That was a big part of what we saw schools do. Some schools, as we said, eliminated programs, but a lot of schools went back and said, what we do, we don't think is discriminatory. We're going to revise our language and update it to really talk about what we do. What we're talking about a year later is now that you've gone through that process, as many schools have, how's it working? Are those steps that you took initially, were they all executed? Do they work on a day-to-day basis? Because anytime you have changes or updates, you have to go back and look at them to make sure they accomplished what you wanted them to. That's one of the things you and I consistently talk about.

Bland

This would apply to all school policies, not just these. You need to set the policy, and you need to keep coming back to it. How can it be made better? What are we seeing in practice? Now that roughly a year has passed since this Dear Colleague letter brought it back to the forefront, it has again been brought to the forefront. This letter didn't change the law. Title VI is not new. Schools have had these obligations for a very long time now. These aren't new laws; it's just bringing it back to the forefront of everyone's attention, and the enforcement body explaining how they see it. Schools are making that adjustment and making sure that it's clear what they're doing so that if there is a complaint to an enforcement body, they can see, this is how the school is defining these processes, and we have a clear understanding of what they're doing.

However, now that it has been about a year, schools are going in and saying, now that we cleaned up our policy, let's make sure the outcomes are doing what we intended. Did we intend for it to act this way? 

Ashley

One question that we often get from clients is what is going on at OCR in terms of what they should expect if they're already under investigation or if they might become a part of an investigation or named in an investigation as a recipient of federal funding. A couple of things about that. 

Recently, there was a decision, as we all know, there was a lot of litigation around the Dear Colleague letter and some injunctions, specifically, there were some letters sent to states requiring entities that receive federal funding to certify that they were complying with Title  VI. There were multiple injunctions limiting what had to be certified. There was some recent activity in a federal case in Maryland where one of the teachers associations had litigated against the Department of Education. Recently, the Department of Education essentially decided not to go further with its appeal. They left the lower court ruling in place, which essentially did not allow them to continue with the certifications based on the Dear Colleague letter. People are looking at that, thinking that the administration may be moving away from DEI issues. Our perspective is that it doesn't change what the entity can investigate. If you are pulled into an investigation, you receive a complaint, or the OCR receives a complaint about your practices, they still can likely apply everything in the letter during the investigation. 

One other thing we just wanted to quickly touch on is that it's easy to get focused on DEI because that's what's in the press and in the letter, but there are so many issues that are very much at the forefront of what schools should be considering. We just wanted to talk a little bit about that. One of those is Title IX athletics. With the House settlement and the NIL issues that are going on, which affect schools, particularly Division I. We just want you to know that there's just an increase in litigation around Title IX athletics, period. That can apply to schools that are NCAA division two or three and schools with non-NCAA athletics. Just your standard Title IX athletics, proportionality of women and men in teams that are offered. That's just an area where there's a lot of litigation. We really want to urge people to take steps in advance of making those decisions, such as eliminating sports teams, that really can help your institution make the best decision it can make. Of course, on a different front, we’re in budget season and issues stemming from reducing costs should be examined closely.

Bland

We're not seeing that going down anytime soon. That litigation, if anything, could increase, since we're about to finish the first school year with the revenue sharing that was approved in the House model. When people see or have whatever their understanding is of the amounts being paid to different athletes, that could always raise different litigation or all sorts of things relating to not just the House settlement. 

Ashley

On that note, we're going to close out. Dani, it's great to talk with you. As always, thanks for joining us.

Bland

Carol, and I, and all of our Jackson Lewis team, and I would be happy to advise any institution on Title VI coordinators. Also, of course, the other issues Carol mentioned, such as Title IX in athletics, Title IX generally, and just all the other issues that occur in your higher ed or even in your elementary and secondary education spaces.