School districts seek clarity on Fed’s order to end DEI

By Aneela Mirchandani, AsAmNews Intern

As the Department of Education’s deadline for K-12 schools to end DEI programs approaches, districts are struggling to gain clarity on how to comply. Failing to act could mean losing federal funding for crucial programs like school lunches and special education. The deadline for compliance, which was originally set to Thursday this week, has been extended to April 24.

Many school districts were in the dark about the new federal requirement. “We have yet to receive direct communication from Federal or State agencies,” acknowledged James Canning, executive director at the San Diego Unified School District, in an email to AsAmNews.

“SFUSD and the Board of Education continue to closely monitor developments at the state and federal level,” said Phil Kim, the president of the board of education of the San Francisco unified school district, in an email. He added, “we stand firm in our core values as a school district.”

Last Thursday, the department sent a memo to the agencies overseeing K-12 public education in all states, requiring them to certify that districts under their jurisdiction had ended all programs that took into account what they called “identity characteristics” of students. Such programs generally fall under the Diversity, Equity, and Inclusion framework, or “DEI.” 

While DEI programs target groups that are perceived as disadvantaged in order to bring them up to par, the memo stresses that they consider all such identity-aware programs as forms of discrimination—and as such, in violation of the Civil Rights Act. 

“Discrimination on the basis of race, color, or national origin is illegal and morally reprehensible,” said a Feb. 14 “Dear Colleague” letter from Acting Assistant Secretary for Civil Rights Craig Trainor, referenced in Thursday’s communiqué. 

However, communications from the department have not been clear enough for districts to act.

“The Dear Colleague Letter and other recent federal guidance from the Department of Education are unclear on what is considered ‘DEI’,” said Jenny Jonak, board chair at the Eugene School District in an email to AsAmNews. 

Trainor’s letter laid out the legal framework for their new requirement. Programs must comply with Title VI of the Civil Rights Act of 1964, which prohibits organizations receiving federal funds from discriminating based on the categories listed by Trainor. Further categories have been added to the 1964 law over the years, such as sex, religion, and disability. Districts that don’t meet the deadline could lose federal funding. 

The loss of federal funding could cause havoc. “Every American public school district receives money from the federal government,” said Randy Barber, chief communications officer at the Boulder Valley school district in Colorado, “for special education, impoverished students, school lunch programs, etc.”

For example, in Colorado alone, the department of education expects to use $807 million in federal funds during this school year out of a total education budget of $7.8 billion, according to figures released publicly. 

Jenny Jonak, board chair at the Eugene School District, said in an email that they do not believe there is a lawful basis for withholding congressionally approved federal funding.

“We receive about $20 million a year in federal funds,” she said, with funds going towards programs aimed at migrant and houseless students, English learners, students with disabilities, school meals, and other support services.

The Trainor letter also cites the 2023 Supreme Court ruling in Students for Fair Admissions (SFFA) v. Harvard that banned race-based preferences in university admissions, otherwise known as affirmative action. Although that case was limited to university admissions, the department expects K-12 districts to use it as a model.

As for what sorts of programs that would entail, confusion abounds. 

David Bernstein, law professor at George Mason University, who had submitted a brief in favor of striking down affirmative action in SFFA v. Harvard, offered a few examples to AsAmNews in an email. “I would say at a minimum, school districts should be eliminating any program that gives students preferences or special programs based on race or ethnicity, no special tutoring for African American students, no sponsoring Latina math competitions.”

Still, the “at minimum” verbiage implies that a lot is left undefined. 

“It remains very unclear what kinds of programs this administration views as ‘illegal’ DEI programs,” said Paige Shoemaker DeMio, senior policy analyst for K-12 Education at the Center For American Progress, in an email. “Based on the letters and FAQs they have released, this could include curriculum that teaches about systemic and structural racism, social-emotional learning, culturally responsive teaching methods, training for school staff that considers the different experiences of students of color, and more. Without clarity on this, states and districts are left with a lot of confusion and are unsure how to move forward.”

The education secretary, Linda McMahon, was herself not immune from the confusion. As reported by the New York Times, during her senate hearing, she expressed uncertainty about whether curriculum including Black history would count as DEI. 

“I’m not quite certain and I’d like to look into it further,” she said. 

In the face of the confusion, school districts around the country have left it up to their states to provide guidance, even though they were the ones who would have to implement the changes. 

Meanwhile, at the state level, some education agencies were huddling with the state governors. “[The Oregon department of education] is aware of the message and is working in partnership with the Governor’s Office to assess potential impacts,“ said Marc Siegel, spokesman, in an email to AsAmNews. In a memo sent to all Oregon school districts, the department asked them to refrain from taking any action on ending DEI programs before discussing it at the state level.

In response to an emailed question from AsAmNews, a spokesperson from the Nevada department of education pointed out that the federal agency had extended its deadline to April 24. “The Nevada Department of Education is reviewing the communication, existing NV statutes, and assurances already signed as a condition to receive federal funds,” they added. 

The two-week extension will come as a relief to the over 13,000 school districts around the country. 

Meanwhile, states will be depending on the FAQ released by the department of education which purports to clarify the order. However, FAQ creates its own ambiguities by using vague language. 

For example, “[…] schools must consider whether any school programming discourages members of all races from attending,” the FAQ says, “[…] by creating hostile environments based on race for students who do participate”—leaving the parameters of what counts as “discouraging” and “hostile environments” open for debate.