The Department of Education is going to enforce the Civil Rights Act not just one colleges and universities’ admissions decisions, but also very broadly to public and private elementary and high schools across the country, according to a Feb. 14 letter by Craig Trainor, Acting Assistant Secretary for Civil Rights at the Department of Education.
The letter enforces President Donald Trump’s Jan. 21 executive order “Ending Illegal Discrimination And Restoring Merit-Based Opportunity,” ordering all federal departments and agencies including the Department of Education to enforce federal civil rights laws on states including schools and universities under Titles VI and VII of the Civil Rights Act.
The Trump executive order stated in part, “the Attorney General and the Secretary of Education shall jointly issue guidance to all State and local educational agencies that receive Federal funds, as well as all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program under Title IV of the Higher Education Act, 20 U.S.C. 1070 et seq., regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).”
According to the letter, “The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard4 (SFFA), which clarified that the use of racial preferences in college admissions is unlawful, sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI… 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.”
To be certain, the Supreme Court’s 2023 ruling in SFFA stated plainly that race and gender based admissions policies run afoul of not only the Civil Rights Act but the Fourteenth Amendment of the Constitution: “Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment…” But the Court was well aware that its own decision in this case might not be followed, and cited past experience of lapses in enforcing the Fourteenth Amendment: “Despite the early recognition of the broad sweep of the Equal Protection Clause, the Court—alongside the country—quickly failed to live up to the Clause’s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm.”
And even after Brown v. Board of Education (1954) that desegregated school, states did not want to comply, with Arkansas deploying its state guard rather than integrate the schools, and President Dwight Eisenhower federalizing the state guard using the Insurrection Act — the same statute President Abraham Lincoln utilized during the Civil War — to end the crisis.
Undoubtedly, we’re a long way from something like that. First, cities and states will opt to sue to stop execution of the President’s anti-DEI in education order, but given the Supreme Court’s clear ruling in SFFA, that seems like it might ultimately fail, posing little more than a speed bump for Trump’s plan to enforce the Civil Rights Act by conditioning federal funds on compliance.
But it could still be the same problem with Trump’s anti-DEI in education order, with cities and states insisting they are complying with the Civil Rights Act even as they clearly violate Title VI on its face, which explicitly conditions federal funding on non-discriminatory policies: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VII similarly prohibits discrimination in hiring, promotion and firing practices: “It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or … to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
But does anyone expect cities and states, especially those with Democratic majorities, to comply with this? Sure, some will, but other, and this is where things might get precarious, will just flagrantly continue to violate the law and ultimately willing to hold the students and parents hostage by claiming the lack of federal funds means they have to close the doors rather than comply with the law — and forcing a confrontation in the courts and beyond.
In a similar vein, school districts including my own local district in Manassas, Va. are already issuing letters assuring district residents — especially those with large illegal immigrant populations — that they definitely intend to not follow federal immigration laws or any attempted enforcement by the Trump administration to deny funds to schools on that basis, citing the 1982 Supreme Court narrow 5-4 ruling in Plyler v. Doe that struck down a Texas statute that barred funding for schools that allowed illegal immigrants.
The Manassas letter stated “MCPS will continue adhering to its established division policies and regulations prohibiting discrimination based on race, color, or national origin. These practices align with the 1982 Supreme Court ruling that public schools must provide an education to all students regardless of immigration status.” And, “MCPS remains steadfast in protecting the legal rights of all students and staff in our schools.” In other words, they have no intention of cooperating with federal authorities at all, even if that means the Plyler decision might be ultimately overturned and federal funds could ultimately be denied.
President Donald Trump should be prepared for states and cities that depend on federal funding — particularly in cities — that might shut down the schools and blame Trump rather than comply with the Civil Rights Act and immigration laws, even if the Supreme Court rules against them.
The advantage the cities and states will have is their ability to use the overwhelming number of students, parents and teachers who depend on the public school system — more than 80 percent of students, or 50 million, attend public schools — as a shield against any compliance, even if that means jeopardizing children’s academic futures. It might be wise to plan ahead when the showdown comes.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
