By Adam Pagnucco.
Back in February, I reported on a dear colleague letter written by a U.S. Department of Education official attacking diversity, equity and inclusion (DEI) programs and threatening loss of federal funding for colleges and school systems implementing them. Now, according to the Associated Press and the Department of Education itself, the department is requiring recipients of federal aid to certify that they do not “use DEI practices in violation of federal law.”
The Department of Education’s certification is titled, “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” It requires state and local educational agencies to certify that they have “reviewed and received” the document and that they “acknowledge that compliance with the below and the assurances referred to, as well as this certification, constitute a material condition for the continued receipt of federal financial assistance, and therefore certify our compliance with the below legal obligations.”
So what does “compliance with the below” mean? After repeating the legal arguments contained in the earlier dear colleague letter, the document specifically discusses DEI programs in this passage.
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Given the text of Title VI and the assurances you have already given, any violation of Title VI—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:
- The use of the provisions of 42 U.S.C. § 2000d-1 to seek the “termination of or refusal to grant or to continue assistance under such program,” eliminating federal funding for any SEA, LEA, or educational institution that engages in such conduct.
- For entities and institutions that use DEI practices in violation of federal law, those entities may incur substantial liabilities, including the potential initiation of litigation for breach of contract by the Department of Justice in connection with civil rights guarantees contained in federal contracts and grant awards seeking to recover previously received funds paid to them under these contracts and grants.
- Moreover, the submissions of claims for money from the federal government when an entity is not in compliance with Title VI and/or its assurances due to certain DEI practices subjects the entity to liability under “[t]he False Claims Act (FCA) [which] imposes liability on anyone who ‘knowingly’ submits a ‘false’ claim to the Government.” United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 742 (2023) (citing 31 U.S.C. § 3729(a)). Under the FCA, violators face penalties including treble damages and civil penalties of thousands of dollars per violation.
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Translation: Don’t use DEI programs or forfeit federal money and risk federal litigation.
This could be a problem for MCPS, which gets more than $150 million in federal money annually. The district’s Antiracist System Action Plan, a sweeping plan dealing with school culture, workforce diversity, work conditions, curriculum, community relations and equity of access, is enforced by a $15+ million, 103-FTE Division of Equity and Organizational Development. It would be hard to argue that this would not be deemed a DEI program in the eyes of the Trump administration. Will MCPS have to give this up to get federal money?
The answer is not any time soon because this requirement is likely to trigger substantial litigation. (Maryland Attorney General Anthony Brown announces lawsuits against the Trump administration on a near-daily basis.) Who knows what the courts will do? And if the issue reaches the conservative-packed U.S. Supreme Court, would they really protect DEI?
Another issue is Trump’s intention to dismantle the education department. If the department eliminates most of its staff, who will be left to enforce this requirement? (Maybe the Trump folks should think about this before firing anyone!)
In any event, the certification represents a new risk for MCPS and educational institutions all over the country. With more than three years left in Trump’s term, we shall see how this fight proceeds.