The Trump administration has threatened to deny Title I funds to schools that don’t comply with their anti-diversity requirements. Jan Resseger checks to see if that’s even legal. Reposted with permission.
Earlier this month, the Department of Education sent school districts a letter threatening to withhold their federal Title I funding unless within 10 days they certify in writing that they have eliminated all programs and policies relating to diversity, equity and inclusion.
Education Week‘s Brooke Schultz reports: “The U.S. Department of Education is ordering school districts and states to certify in writing that they’re not using diversity, equity, and inclusion programs, in order to continue receiving federal education funds. In a letter sent out Thursday, the Trump administration gave state education chiefs 10 days to sign a certification saying they’re complying with Title VI of the Civil Rights Act, which prohibits race-based discrimination in federally funded programs. The certification makes clear that the department, under President Donald Trump and Secretary of Education Linda McMahon, considers DEI programming to be a violation of the anti-discrimination law. In addition to collecting the signatures of state education chiefs, the department asks the state leaders to collect the same certification from every school district.”
I am not an attorney, but as a citizen I can see that many of the threats and actions of the Trump administration are immoral, if not patently illegal. I have always understood and affirmed programs that support diversity, equity, and inclusion to be the very definition of efforts, in compliance with the Civil Rights Act, to protect the civil rights of groups of students who have been denied equity and authentic welcome at school. Trump’s Department of Education fails even to provide a clear definition of what it calls “diversity, equity and inclusion”; their definition instead appears to affirm segregation, inequality, and exclusion. Like many of us who know the importance of what has been achieved under the Civil Rights Act, I am confused and dismayed by the Trump administration’s attack on enforcement of that law and by the administration’s current threat to public school districts’ Title I funding.
It was therefore helpful to me last weekend at the Network for Public Education Conference to hear constitutional law professor Derek Black explain that the Department of Education’s threat to deny federal Title I funds as a way to force ideological compliance across all 13,000 U.S. public school districts is also unconstitutional in an even broader way than challenging the definition of what are students’ civil rights and whose rights are being violated. Black explained at the conference (and later declared on X) that Trump’s order violates the right to free speech as protected by a specific 1943 Supreme Court decision in a case called West Virginia v. Barnette: “By canceling funding for states and schools last week, Trump was demanding a loyalty pledge from every state and local official in the country.”
Here is what you’ll find if you google West Virginia v. Barnette: “Compelling school children to salute the flag violates freedom of speech protected by the First Amendment.” “In a 6-to-3 decision… the Court found that the First Amendment cannot enforce a unanimity of opinion on any topic” and “that curtailing or eliminating dissent was an improper and ineffective way of generating unity.”
Education Week‘s Schultz quotes the spokesperson for the California Department of Education agreeing with Derek Black, and calling last week’s letter threatening to withhold Title I from districts that won’t ban DEI: an “attempt to impose a national ideology on local schools by threatening to withhold vital resources for students.”
Schultz additionally quotes several attorneys explaining how last week’s letter threatening the loss of Title I funding violates the Civil Rights Act. Michael Pillera, the director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, explains: “The goal here is increased threats and intimidation to cause a chilling effect that makes school districts all over the country stop doing activities and things that are otherwise lawful under Title VI.” Kimberly Robinson, a law professor at the University of Virginia, explains: “The letter basically seeks to suggest that DEI programs are inconsistent with Title VI, but that is not actually consistent with at least what the Supreme Court has said so far.”
In an encouraging development, last Friday leaders of the New York State Education Department formally refused to comply with the Trump administration’s demand. Chalkbeat New York‘s Michael Elsen-Rooney quotes New York’s Deputy Education Commissioner and Council, Daniel Morton-Bentley: “We understand that the current administration seeks to censor anything it deems ‘diversity, equity & inclusion’… But there are no federal or State laws prohibiting the principles of DEI.” Morton-Bentley adds that the NY State Education Department “is unaware of any authority that the USDOE has to demand that a State Education Agency… agree to its interpretation of a judicial decision or change the terms and conditions of New York State Education Department’s award without formal administrative process… We understand that the current administration seeks to censor anything it deems ‘diversity, equity & inclusion’… But there are no federal or State laws prohibiting the principles of DEI… And USDOE has yet to define what practices it believes violate Title VI (of the Civil Rights Act)… USDOE is entitled to make whatever policy pronouncements it wants—but cannot conflate policy with law.”
The state of Washington’s Superintendent of Public Instruction, Chris Reykdal has also announced that he will not sign the Trump administration’s order to end diversity, equity and inclusion practices in public schools: “We will not sign additional certifications that lack authority, lack clarity, or are an assault on the autonomy of states and local school districts by misapplying a higher education admissions case,” he wrote. “It would be irresponsible to do so.”
Chalkbeat Chicago‘s Becky Vevea reports that Chicago Mayor Brandon Johnson also plans to refuse to comply on behalf of the Chicago Public Schools: “It’s unconstitutional to disrupt freedom of speech… We’re not going to be intimidated by these threats.