Education department requires certification of compliance with federal civil rights laws — and spells out consequences
Update: The 74 is reporting that the certification deadline has been extended to April 24, according to Madi Biedermann, a department spokesperson. The department’s press release has not been updated with that extension.
The U.S. Department of Education said in a press release Thursday that it is requiring K-12 school districts and state departments of education to certify compliance with federal civil rights law within 10 days as a condition of receiving federal dollars.
The press release specifically requests certification of compliance with Title VI of the Civil Rights Act and subsequent case law interpreting the federal law.
What led up to this request?
On Friday, Feb. 15, the U.S. Department of Education sent a “Dear Colleague” letter to educational institutions receiving federal funds, including preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies.
In the letter, Craig Trainor, acting assistant secretary for the Office of Civil Rights in the U.S. Department of Education, directed education institutions to “cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond.”
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On Saturday, March 1, the Office of Civil Rights (OCR) in the U.S. Department of Education released a FAQ about the letter.
Footnote three of the letter and the FAQ note, “This guidance does not have the force and effect of law and does not bind the public or create new legal standards,” but the body of the letter says educational institutions that fail to comply may “face investigation and loss of federal funding.”
State Superintendent Maurice “Mo” Green sent a response to the letter to school and district leaders in North Carolina on Feb. 21. You can read Green’s response here.
What happens next?
The press release says state educational agencies, which in North Carolina is our Department of Public Instruction, are responsible for certifying compliance for their state overall and for collecting certification responses from school districts — called local education agencies (LEAs) in the letter.
There are 115 LEAs in North Carolina.
The letter gives state chiefs 10 days to sign and return the certification.
What does the certification say?
Title VI of the Civil Rights Act of 1964 provides that “[n]o 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.”
Signing the certification could be interpreted as tacit agreement with the department’s interpretation of case law.
The letter goes on to say, “including the use of Diversity, Equity, & Inclusion (‘DEI’) programs to advantage one’s race over another — is impermissible. The use of certain DEI practices can violate federal law. The continued use of illegal DEI practices may subject the individual or entity using such practices to serious consequences,” including:
- Loss of federal funding,
- Litigation for breach of contract,
- Recovery of previously received funds, and
- Possible treble damages and civil penalties the department says it may seek through the federal False Claims Act.