The U.S. Department of Education has just released a Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act document. It’s exactly what you’d expect—overreach, aggressive legal maneuvering, and nonsensical logical reasoning. This document is yet another attempt to create confusion, stoke fear, and intimidate institutions that are working to ensure access and opportunity for all students. The rhetoric here isn’t about enforcing fairness—it’s about using legal gymnastics to dismantle diversity, equity, and inclusion (DEI) efforts under the false pretense of neutrality. But don’t be fooled—this is about rolling back progress, plain and simple.

The Misinterpretation of Students for Fair Admissions v. Harvard

First, let’s talk about the Supreme Court decision in Students for Fair Admissions v. Harvard (SFFA). The ruling may have technically struck down affirmative action as we knew it, but the language being peddled here takes that decision to an extreme. The Supreme Court did not say that race and lived experience are irrelevant to the admissions process—it said that race cannot be used as a standalone factor. I discuss Roberts reason here in U.S. Department of Education’s 14-Day Ultimatum on Equal Opportunity: Will Universities Surrender or Resist?. Yet, this FAQ document purposefully manipulates that ruling to suggest that any effort to recognize the impact of race in education is a violation of Title VI. That’s a wild leap.

The FAQ is filled with contradictions. It claims that institutions can consider an applicant’s experiences, so long as they’re not using race as a ‘plus factor.’ But here’s the catch: race is embedded in experience. You can’t separate a student’s racialized experiences from the adversity they have faced, the perspective they bring, or their potential contributions to a university community. Yet, this document attempts to set up an impossible legal standard that functionally removes race from the equation altogether, forcing institutions into a legal gray area where they risk being sued simply for recognizing reality.

The Broader Assault on DEI Initiatives

Moreover, the Department of Education is using this ruling as a battering ram against DEI initiatives. The FAQ questions the legality of race-conscious programming, suggesting that any effort to address racial inequities might create a ‘hostile environment’ for students of other races. This is a classic reversal—turning the aggressors into the victims and treating long-standing, systemic disparities as if they were suddenly examples of ‘reverse discrimination.’ It’s an absurd argument designed to erase decades of work in educational access and justice.

The document also takes aim at university essay prompts, effectively warning institutions against allowing students to discuss how their racial identity has shaped their journey. That’s right—colleges are being told they can ask about their lives or hardship, but if that hardship is explicitly racial in nature, it suddenly becomes illegal? How does that make any sense? The only conclusion is that they want to ban, cancel, censor discussions about race and suppress the voices of historically marginalized communities.

And let’s not forget the attack on DEI offices, scholarships, and affinity spaces. The FAQ frames DEI as a discriminatory practice while conveniently ignoring the persistent and measurable racial disparities in higher education. Historically Black Colleges and Universities (HBCUs), Hispanic-Serving Institutions (HSIs), and other race-conscious programs have existed precisely because access and opportunity has never been equal in our society. The suggestion that acknowledging racial inequities somehow violates Title VI is nothing more than an attempt to rewrite history and pretend that racism no longer exists.

The Broader Political Agenda

In reality, this entire framework is not about fairness—it’s about control. This is a coordinated effort to make universities afraid to stand up for diversity. It’s about stripping away the tools that institutions have used to level the playing field for students of color and reinforcing a false narrative that any effort to correct historical injustice is itself discriminatory.

This isn’t happening in isolation. It’s part of a broader movement to roll back progress in racial and social justice under the pretense of ‘colorblindness.’ This isn’t about ensuring equal treatment—it’s about maintaining an unequal status quo while silencing any efforts to address systemic disparities. From attacks on Critical Race Theory to bans on DEI funding in public universities, the goal is clear: to shut down conversations about racial equity and prevent meaningful policy solutions.

The Real Impact on Students and Institutions

What does this mean for students? It means that students of color, who already face disproportionate barriers in access to higher education, will find it even harder to have their experiences and challenges acknowledged. It means that universities will be forced to tiptoe around discussions of race, lest they be accused of violating Title VI. It means that programs designed to support underrepresented students may be gutted or outright eliminated due to fear of legal repercussions and lack of courage (See Ohio State). Btw the way, how many days since Ohio State has beaten Michigan? 1917 days.

For institutions, this means navigating an increasingly hostile legal landscape where any attempt to foster diversity could become the target of lawsuits. University leaders will have to decide whether they will stand firm in their commitment to equity or cave to external pressures designed to dismantle decades of progress. Some institutions may take the easier path—quietly backing away from diversity programs, watering down their commitments, and shifting focus to so-called ‘race-neutral’ policies that ignore the realities of structural inequality.

The Path Forward: Resistance and Action

So, here’s the bottom line: Don’t be fooled by the legal jargon. This is not about equal protection under the law. This is about power, about erasure, and about turning back the clock on hard-won gains in access and equity. Universities, educators, and students must push back, get creative, and refuse to be intimidated by this political agenda disguised as legal interpretation. The fight for educational equity is far from over—no matter how many ‘Dear Colleague’ letters or FAQs OCR stacks in their DC office, ready to send out.

Institutions committed to diversity must take action. That means resisting these fear tactics and finding ways to maintain inclusive policies that support students from ALL backgrounds. That means seeking expert legal counsel to challenge and navigate these restrictions rather than folding under pressure. That means continuing to advocate for policies that recognize the real and ongoing impact of racial inequities in higher education.

This is not the time for silence or retreat. It’s time for universities to stand up for their values, defend their students, and fight back against this coordinated attack on educational access and justice. The future of diversity in higher education depends on it.

p.s. In FAQ #13 they suggest a three step test, but you only have two steps. Sloppy work all around. h/t Kevin Welner.