K-12 school districts across the country now face a tight deadline to navigate a minefield with significant legal and funding implications. On April 3, the U.S. Department of Education (DOE) issued a letter to state education leaders requiring them to certify compliance with Title VI — the provisions of the Civil Rights Act that prohibit discrimination based on race, color, or national origin — and with the U.S. Supreme Court's decision in Students for Fair Admissions v. Harvard as a condition of receiving federal financial assistance.
"Unfortunately, we have seen too many schools flout or outright violate these obligations, including by using DEI [diversity, equity, and inclusion] programs to discriminate against one group of Americans to favor another based on identity characteristics in clear violation of Title VI," said Acting Assistant Secretary for Civil Rights Craig Trainor. Citing the Harvard case that effectively ended college affirmative action programs, Trainor echoed Chief Justice John Roberts' conclusion: "Eliminating racial discrimination means eliminating all of it."
Local education agencies have fewer than 10 days to respond about Title VI compliance to their state education agencies, which must then report to the federal government. This is but one of the new risks they face, as on April 4 the DOE and the U.S. Department of Justice (DOJ) announced a Title IX (prohibiting sex discrimination) Special Investigations Team "to ensure timely, consistent resolutions to protect students, and especially female athletes, from the pernicious effects of gender ideology in school programs and activities."
The Trump administration has previously signaled it will target DEI programs and "radical indoctrination" in schools, but the rubber has now met the road with these latest steps. For while the administration is overhauling the DOE to "give parents and states control over their children's education," what funding remains under DOE control now has explicit DEI terms — and possibly a trip wire — attached to it.
What the "No-DEI" Certification Requirement Means for K-12 Schools
State and local agencies must certify they are not violating Title VI by using race-based criteria or practices in any area of school operation. By requiring certifications at both the state and district levels, the DOE is creating a direct compliance obligation for superintendents, boards, and administrators.
Though the certification form does not provide a list of activities that are specifically prohibited, federal investigators are likely to focus on areas such as:
- Curriculum that touches on systemic racism, privilege, and critical race theory
- Student assignment (such as for magnet schools)
- Student counseling and discipline (such as policies focused on equity and reducing a disparate impact among students of color)
- Student performance (such as programs designed to improve outcomes for students of color)
- Mentorship programs
- Hiring and promotion
- Administrative support
- Affinity groups
The certification form quotes from the Harvard ruling in outlining the requirements that schools face. As our colleagues have previously written, that ruling does allow for the consideration of how race may have played a role in the context of an individual's experiences — "be it through discrimination, inspiration, or otherwise." (The certification form does not reference that part of the opinion.) It also still enables the use of racial classifications that satisfy the high legal bar of "strict scrutiny."
Remember, though, that school districts and state education departments already routinely certify compliance with Title VI as a condition of federal funding. And while the Trump administration may take a broad of view of what constitutes "prohibited" or "illegal" DEI activities, that view will almost certainly be challenged in the courts. In fact, at least one state education department, in New York, has already stated that it will not sign the certification, characterizing the certification as duplicative of assurances already provided and overstating the holding of Harvard.
How Might K-12 Districts Expect These Title VI Certification Requirements to Be Enforced? Look to the Title IX Approach as a Possible Model
Unless handled carefully, this Title VI certification requirement may not be just a condition for receiving funding, but it also may serve as a trip wire for potential affirmative enforcement actions by the DOE and/or DOJ. For any time a person or entity makes a material certification to the federal government in order to receive funding, if it is deemed to be fraudulent (i.e., that they are not doing or have not done what the government perceives they said they would do), it could trigger a civil enforcement action under the False Claims Act. That would carry penalties per violation, plus up to triple damages, and even possibly a parallel criminal investigation.
It is likely that the government will allocate resources for just such enforcement actions, if how the administration's approach to implementing its view on Title IX is any guide. Specifically, in order to enforce the president's "Keeping Men Out of Women's Sports" and "Defending Women From Gender Ideology Extremism" executive orders, Secretary of Education Linda McMahon announced that "there's a new sheriff in town" with the formation of the joint DOE/DOJ Title IX Special Investigations Team (SIT). The SIT is to offer "a rapid resolution investigation process" to Title IX complaints by having the departments work together "to conduct investigations that are fully prepared for ultimate Justice Department enforcement." Given that only the DOJ has the authority to bring a federal criminal prosecution, this very well may be what "ultimate" means in this context. And if there are "sheriffs" newly deputized to do so on the Title IX front, could additional law enforcement on the Title VI/DEI front be far behind?
Next Steps for K-12 Leaders
Given the short response timeline and heightened enforcement environment, school leaders should act quickly to mitigate legal and financial risk. Districts should:
- Immediately and regularly assess whether their DEI programs are legally compliant based on pronouncements from the government and (as they come) interpretations of those pronouncements by the courts.
- Be thoughtful about how DEI initiatives are communicated internally and externally. Consider the impact on reputational risk, morale, and stakeholder relationships.
- Consider incorporating nontraditional approaches that support inclusion but do not directly relate to a person's protected characteristics.
- Be prepared for the creation and intervention of a "DEI Special Investigations Team" to review district initiatives and activities.
- Train leadership and staff on revised legal standards and federal enforcement priorities, including the critical initial steps if they receive notice of an investigation.
- Consult with their respective state education departments for guidance.
- Consider partnering with outside legal counsel to navigate these processes and reduce compliance risks.
Broader Context on DEI and Education Regulation
This new K-12 directive is part of a wider federal campaign to dismantle race-conscious and gender-based programming across the education and employment sectors. In recent months, the DOE has issued similar warnings to colleges and universities, while the DOJ has begun identifying private employers — including nonprofits and educational institutions — as potential targets for civil and criminal investigations related to DEI policies.
As noted in an earlier client alert, the administration has also issued an executive order on "ending radical indoctrination" in K-12 schools. The order required Cabinet members to develop an "Ending Indoctrination Strategy" by April 29. Secretary McMahon has made clear that her priorities include "combatting critical race theory."
These efforts are occurring as the administration is working to eliminate the DOE to the fullest extent permissible by law. As we have written, the prospect of realignment or reassignment of federal education responsibilities has the potential to significantly alter longstanding compliance frameworks, funding streams, and programmatic operations.
Final Takeaway
School districts are picking their way through a minefield of rapid changes to their compliance landscape. K-12 leaders should prepare for continued regulatory uncertainty and increased investigative risks tied to their curriculum and policies.
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