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Virginia colleges and universities are on notice: the U.S. Department of Education’s Office for Civil Rights (OCR) has warned that institutions failing to eliminate race-based decision-making could lose federal funding.

The supplemental guidance, released Friday, follows the federal government’s directive for schools to stop considering race in admissions and other policies. It clarifies how the Supreme Court’s Students for Fair Admissions, Inc. v. President & Fellows of Harvard College ruling applies to ‘racial classifications, racial preferences, and racial stereotypes,’ and how OCR will enforce Title VI of the Civil Rights Act of 1964.

The Supreme Court’s decision in June 2023 effectively ended affirmative action in higher education, striking down race-conscious admissions policies at Harvard University and the University of North Carolina. In response, Virginia schools have revised their admissions policies to comply with the ruling.

Under President Donald Trump’s administration, the latest directive from OCR aligns with broader efforts to eliminate race-based considerations in education.

In Virginia, Gov. Glenn Youngkin and lawmakers took further action last year by banning legacy admissions. Youngkin’s administration has also instructed Virginia’s Boards of Visitors — governing bodies appointed by the governor — to eliminate all forms of racial discrimination on campus, according to a report by the Richmond Times-Dispatch on Tuesday.

Many of Virginia’s educational institutions rely on federal funding, including all 132 K-12 public school divisions. Federal dollars are critical in key areas such as support for students with disabilities and funding for at-risk schools — those serving students at higher risk of failing or dropping out.

Over the next two years, more than $2 billion in federal funds is set to flow to schools across the commonwealth.

“Virginia’s Department of Education is currently reviewing all of its programs to ensure full compliance with federal laws and to foster an educational environment for all students that is free from discrimination, as outlined in the letter and additional guidance from the U.S. Department of Education,” said Christian Martinez, a spokesman for Youngkin, in a statement. “Governor Youngkin expects that they will comply.”

Beyond K-12 schools, Virginia’s higher education system also stands to be affected. The state has 15 four-year public colleges and universities and more than 20 community colleges.

Bob Spieldenner, a spokesman for the State Council of Higher Education for Virginia (SCHEV), said the council is “closely monitoring potential changes to higher education policy at the federal level and reviewing the recently posted FAQs.”

Given the shifting landscape of executive orders, legal challenges and court rulings, SCHEV has not yet issues formal recommendations to institutions. However, Spieldenner said the council continues “to track developments and may, as necessary or helpful, provide opportunity for discussion or collaboration with Virginia institutions.”

The letter and guidance

The Trump Administration has moved to reinforce what it describes as schools’ “non-discrimination obligations“ with new directives from the U.S. Department of Education’s Office for Civil Rights. A letter published in February, followed by supplemental guidance in March, aims to clarify the restrictions on race-conscious policies for schools and other entities receiving federal financial assistance.

In the letter, Craig Trainor, acting assistant secretary for OCR, emphasized the department’s commitment to eliminating what it views as unlawful race-based policies in education.

“The department will no longer tolerate the overt and covert racial discrimination that has become widespread in this nation’s educational institutions,” Trainor wrote. “The law is clear: treating students differently on the basis of race to achieve nebulous goals, such as diversity, racial balancing, social justice or equity is illegal under controlling Supreme Court precedent.”

The letter advises all educational institutions to ensure that their policies align with existing civil rights law and warns against any form of race-based decision-making. It specifically directs schools to discontinue using race as a factor in admissions, hiring, promotion, scholarships, disciplinary actions, and other programs. Additionally, institutions are instructed to halt reliance on third-party organizations that assist in implementing race-conscious policies.

OCR’s additional guidance released Friday seeks to clarify its previous directive and address anticipated questions. One key issue was whether Diversity, Equity, and Inclusion (DEI) programs violate the Supreme Court’s ruling in the Students v. Harvard case.

According to the guidance, schools “may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping or create hostile environments for students of particular races.”

Another question focused on whether schools can invite applicants to discuss race in their application essays. The Supreme Court barred race-based admissions policies, the guidance states, but institutions are still allowed to consider how race has shaped an applicant’s experiences — so long as they do not use it as a direct admissions factor.

“Schools that craft essay prompts in a way that require applicants to disclose their race are illegally attempting to do indirectly what cannot be done directly, as are admissions policies that hold brief interviews in order to visually assess an applicant’s race. It is ultimately racial preferences that are illegal, however accomplished,” the guidance states.

OCR also cautioned against what it described as attempts to “circumvent SFFA’s holding” through what some commentators have called the “essay loophole.”

“Schools can credit what is unique about the individual in overcoming adversity or hardship but never the person’s race,” the guidance states.

Virginia Mercury is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Samantha Willis for questions: info@virginiamercury.com.

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