Federal agencies are using Title VI of the 1964 Civil Rights Act to assert control over teaching, learning, curriculum, and hiring in public and private schools and universities. Students for Fair Admissions v. Harvard (2023) (SFFA), a case about race-conscious admissions, incongruously undergirds this strategy. The Department of Education’s February 14, 2025 “Dear Colleague” letter to federal grant recipients states that “educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.” The letter states that SFFA forbids schools and universities from engaging in what the letter calls illegal “‘diversity, equity, and inclusion’ (‘DEI’), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline,” and from adopting programs that “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not.” According to the letter, “such programs [violate Title VI because they] stigmatize students who belong to particular racial groups based on crude racial stereotypes.” The letter directs federal funding recipients to comply with civil rights law, announces the possibility of agency investigation, and encourages reporting of violators through a Department of Education portal. A court has now enjoined the letter and portal. But the letter makes plain the strategy to enlist SFFA and Title VI far beyond their intended parameters to control governance and programs at federally funded schools and universities, with potential effects on curriculum, teaching, learning, and hiring.

These administrative actions depend on a distortion of SFFA’s reach. SFFA holds that race-conscious admissions programs used to advance diversity violate the Equal Protection Clause of the 14th Amendment and Title VI of the 1964 Civil Rights Act. While the legality of affirmative action is generally thought of as a constitutional issue, the Supreme Court has long held that Title VI and the Equal Protection Clause are co-extensive (this in an often overlooked part of the Bakke v. Regents of California affirmative action decision). Since Harvard and other private institutions are not state actors, Title VI is the necessary vehicle for asserting race discrimination claims against them. The result is that the SFFA ruling had immediate implications not just for public schools, but for many independent and private institutions that receive federal funding.

What has followed from this ruling is an attempt by some conservatives to use SFFA’s Title VI holding to assert powers over federally funded public and private institutions. The assertions depend on an aggressive extension of SFFA’s reasoning and holding. That the case had implications for explicitly race-conscious programs (such as public and private school admissions and fellowships) was not surprising. Anti-affirmative action groups brought immediate challenges (sometimes also invoking 42 U.S.C. § 1981) to employment and contracting programs that consider race as a factor. However, groups then went much further, reading the case as a color-blind mandate that forbids programs that seek racial equality as a goal. That these latter extensions have not yet been successful in court and rest on dubious legal premises has not stopped the current presidential administration from seeking to advance the goal of colorblindness through the assertion of agency power. They seek to extend this colorblind idea not just to a wide range of decisions about admissions practices (such as whether to use standardized tests or abolish legacy admissions), but also to impact programs labeled broadly as ‘DEI.’ While some commentators (though skeptical of the Dear Colleague letter) have argued that by its terms the letter does not apply to academic courses, the letter’s imprecision and the enormity of its threat have implications for programs that promote student welfare on campus, as well as curriculum and teaching. In particular, the letter makes expansive assertions that programs that promote inclusion of underrepresented groups may violate Title VI and the letter fails to delineate any clear safe harbor for curriculum, courses, and other academic activities and student support programs. The Department of Education’s accompanying press materials also quote advocates who applaud the current administration’s “End DEI” efforts and discourage the teaching of “critical [race] theory, rogue sex education and divisive ideologies.” The administration’s subsequent FAQ disclaims an intent to control the content of curriculum and courses while at the same time suggesting that some teaching and programming may by itself create a hostile environment for students. The stakes of this murky invocation of Title VI are even higher because we know that the administration is willing to take the unprecedented step of terminating funds to institutions.

Title VI’s conditioning of federal spending invites a regulatory approach to civil rights enforcement. It gives agencies power to implement antidiscrimination goals through informal guidance, rulemaking, and enforcement action. But the specific moves taken in the February Dear Colleague letter, and other moves to use Title VI to control curriculum, faculty hiring, and university governance such as the efforts to terminate funding to Harvard and Columbia, contravene the statutory language and Congress’ clear intent to restrain agencies in applying Title VI, and are a dangerous use of conditional spending to attempt to control civil society and knowledge institutions. (Note: the various letters threatening Harvard and Columbia are vague about their statutory authority).

To start, the use of SFFA to threaten a broad range of school and university activity is at the very least dissonant. SFFA’s holding is about explicitly race-conscious admissions in a purportedly ‘zero sum’ high stakes context. The case does not invite control of other domains of school and academic life unrelated to admissions. These extensions also invert the desegregation and integrative purpose of Title VI—a statute meant to require the inclusion of Black students and individuals and historically underrepresented groups in federally funded institutions. It mobilizes the administrative state to limit programs that schools use to advance racial equity, and to undermine institutions’ ability to teach history, literature, or the sciences in ways that are accurate, inclusive, and engage complex social realities.

Using Title VI in this way contravenes the congressional deal that undergirds the statute. Congress granted federal agencies power to terminate funding to institutions that violated the non-discrimination provisions of the statute. Professor Gerald Rosenberg’s famous study of courts and social change shows that Brown v. Board of Education and its aftermath had little effect on desegregation in the South until the passage of Title VI, which provided the threat of the loss of federal funding to school systems. Conditioned spending is meant to be a powerful incentive. At the same time, that power was constrained. Southern congressional members worried about the power the statute gave to federal agencies and insisted on including statutory procedures to constrain the power to terminate federal funds. (That congressional history is captured in Professor Stephen Halpern’s thorough and somewhat skeptical examination of Title VI in On the Limits of the Law: The Ironic Legacy of Title VI). And in a realpolitik sense after some enforcement (and a few instances of actual fund termination) in the 1960s, much of the story of Title VI has been about funding threats that were never realized and attempts by racial justice advocates to push the federal government to more vigorously enforce Title VI.

Further, much of what is encompassed in the administrative guidance and the threats of ending federal funding is not just an improper reading of SFFA counter to Title VI’s founding purpose, but in fact a reading that contravenes Title VI and the Constitution. As my colleagues and I have written, in the context of the government’s efforts to cut off Columbia’s federal funding in the name of combatting anti-Semitism, Title VI requires adherence to statutory and constitutional due process procedures (including formal hearings and congressional review). Other constitutional problems abound. Congress cannot condition spending on the violation of other constitutional provisions such as the First Amendment, and it cannot jawbone institutions into violating the First Amendment, as Professors Evelyn Douek and Genevieve Lakier have written. Requiring institutions to make changes to curriculum, hiring, and faculty governance based on federally imposed ideological or viewpoint tests, or to constrain the speech of faculty, imposes conditions that violate the First Amendment.

Congress also must provide clarity to grantees when conditioning federal spending. The lack of specificity in the notion of ‘illegal DEI,’ and the unclear basis for extending SFFA, also implicate due process. Nor can the executive branch invent its own rules for spending programs that have no statutory basis or alter long-standing interpretations of Title VI without engaging in reasoned decision making as required by the Administrative Procedure Act. It is for these reasons and others that a district court in New Hampshire recently enjoined the February 14th Dear Colleague letter. The case itself is worth a read for the examples it provides of the actual threats posed to teachers, curriculum, and learning from the vague guidance and enforcement letters.

In the end, this extension of SFFA and enlisting of Title VI’s conditional spending has profound implications for constitutional democracy. This may seem overblown. Every administration will have its enforcement priorities. President Lyndon B. Johnson’s administration drew criticism from members of Congress and school districts for being too aggressive in its Title VI enforcement and guidance to advance school desegregation in the late 1960s. Republicans and religious institutions opposed enforcement and guidance in the litigation and administrative actions involving Grove City College (a religious institution that resisted federal agency action to enforce Title IX, which was modeled on Title VI), and more recently with respect to the meaning and scope of the Biden administration’s gender identity regulations under Title IX. There are often disagreements on the validity of agency interpretation and whether guidance needs to go through rulemaking procedures.

The threats that the conditional spending regime, as it stands, pose to constitutional democracy stem from the degree and number of constitutional concerns in the current deployment of Title VI (as highlighted above); the increasingly hostile efforts to control and direct knowledge institutions; the effective repealing or distortion of longstanding civil rights laws and regulations that are seen as advancing the interests of underrepresented groups; and attempts to control the teaching of history, target research that addresses social inequalities, and limit dissent. Title VI has never been fully implemented but even so often has been helpful in advancing statutory and constitutional civil rights goals. Now in the hands of an executive willing to flout statutory and constitutional rules and norms, it may be time to rethink the structure of the conditional spending regime on which Title VI and other statutes depend. This could include amending the statute to: strengthen the statutory procedural protections before funding termination; safeguard university and school governance, curriculum, and other threats to academic freedom; protect against retaliatory funding termination; and provide transparency in the administrative record to enable political and judicial review of agency actions and motivations. If the current Congress is unwilling to take these measures, it will be courts who will need to enforce existing Title VI rules and safeguard Title VI’s worthy inclusionary goals.