The U.S. Department of Education (the “Department”) has mandated that all Local Education Agencies (LEAs), which include public school districts, provide certification of their compliance with certain legal obligations described in an April 3rd document titled “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” The certifications are due by April 24, 2025, and must be submitted to applicable State Educational Agencies (SEA). ODEW, as Ohio’s SEA is requesting that certifications be submitted by April 18 even though they are not due until April 24th. This order came from the federal government via executive orders issued on January 20 and January 21, 2025, and was clarified to schools via the Department’s February 14, 2025, “Dear Colleague” letter (“Letter”).

Failure to provide certification of compliance may result in a loss of school funding from the federal government. The original deadline was extended to April 24th pursuant to an agreement between the ACLU, National Education Association-New Hampshire (NEA-NH”), and the Department. This agreement came in response to an emergency Motion for a Temporary Restraining Order in a New Hampshire lawsuit by the ACLU and NEA-NH against the Department based on the February 14 Letter and request that the court find the Letter and the requirement to end DEI to be unconstitutional.

The plaintiffs in the New Hampshire lawsuit are seeking a nationwide injunction. A preliminary injunction hearing is scheduled for April 17th over the certification requirement. It is certainly possible that the court issues a ruling on the preliminary injunction by the April 24th deadline for certification. As a result, school districts may wish to wait until after April 17th to learn whether the New Hampshire court issues a nationwide injunction preventing the certification requirement.

On February 28, 2025, the Department Provided Some Clarification of the Letter

On February 28, 2025, the Department published frequently asked questions and answers (“Q&A”) in relation to the Letter. The Q&A provides some clarification on the Letter and the potential consequences schools may face if they fail to comply with the Letter.

The Letter stated that schools found out of compliance on February 28, 2025, would face a loss of funding. However, in the Q&A the Department clarifies that the Office of Civil Rights (“OCR”) will follow its normal process for determining if a school is out of compliance and at risk of a loss of funding.

Clarification Regarding DEI Programs:

As for DEI, the Department clarifies that OCR’s assessment of school policies and programs depends on the facts and circumstances of each case. Further, the Department states that “whether a policy or program [fails to comply] does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’ Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.”

Finally, in terms of “covert discrimination” which is neutral on its face but discriminatory in purpose, the Department clarified how OCR will make this determination. OCR may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent. The Department outlined a simple test that OCR may utilize:
1. Did the school treat a student or group of students of a particular race differently from a similarly situated student or group of students of other races?
2. Can the school provide a legitimate, nondiscriminatory reason for the different treatment that isn’t pretextual?

Clarification Regarding What is Deemed Racial Preferencing:

The Q&A also outlines more specifics on the Supreme Court decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) upon which the Letter states that the Department is relying for the standard of compliance. The Court held that admissions programs violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and, coextensive with the Equal Protection Clause, Title VI of the Civil Rights Act by considering students’ race when making admissions decisions. With that, the Court found that the admissions programs were unlawful because they employed racial stereotypes, disadvantaged members of particular races, were not sufficiently measurable, and lacked a logical endpoint.
The Department states that the Court’s decision in SFFA has broad implications regarding racial preferences with students. The first of these implications being that schools cannot, in any competitive admissions process, or other competitive process for a benefit at an educational institution, legally treat membership in any racial group as a plus factor, because a plus factor for one racial group is necessarily a negative factor for those not in that racial group. Second, even when racial classifications or distinctions do not necessarily involve making conscious stereotypes about members of a particular race or placing members of a particular race at a disadvantage in a zero-sum process, they still raise constitutional concerns under the Fourteenth Amendment. The Department mentions that this applies both for admissions and hiring.

The Department also reiterates in multiple answers that schools are responsible for ensuring they are not partnering with third parties in race-based discrimination. They state that “schools may not administer or advertise scholarships, prizes, or other opportunities offered by third parties based on race” and that “[a] school may not engage in racial preferences by laundering those preferences through third parties.”

Clarification Regarding What is Considered Unlawful DEI:

The Department states that “schools must consider whether any school programming discourages members of all races from attending, either by excluding or discouraging students of a particular race or races, or by creating hostile environments based on race for students who do participate.” The Department also clarifies that First Amendment rights are not being restricted and control over curricula is not being exercised but “the First Amendment rights of students, faculty, and staff, and the curricular prerogatives of states and local school agencies do not relieve schools of their Title VI obligations not to create hostile environments through race-based policies and stereotypes; nor does it relieve them of their duty to respond to racial harassment that creates a hostile environment.”

The Department further states that “[i]n determining whether a racially hostile environment exists, OCR will examine the facts and circumstances of each case, including the nature of the educational institution, the age of the students, and the relationships of the individuals involved.” The Department provides examples of programs that would amount to creating a hostile environment such as ones that would act to bring shame or intrinsic guilt upon members of certain races or ethnicities. Finally, within this section, the Department warns that schools must not discriminate based on race with “how they discipline in response to complaints or allegations of harassment, or in response to speech that would be protected under the First Amendment, whether through use of bias response teams, mandatory trainings, or compelled statements.”

How This Affects Your District

Unless a court issues an injunction applying to Ohio, all districts have been directed to submit the certification of compliance by April 24, 2025.
However, for Ohio Districts, ODEW is requesting certification by April 18, 2025. This request does not appear to be a legal mandate since the Department has clearly given public school districts until April 24th to submit their certifications. Prior to providing your certification, consider the clarification the Q&A document provides.

Since this Q&A also provides more insight into what the DEI programs are, this gives your District a chance to ensure a “racially hostile environment” is not occurring via school programming or in disciplinary measures for harassment. As for racial preferencing in enrollment or employment decisions, the Department is asking your District to ensure that there is nothing in your practices or policies (or those of a third-party that your District utilizes) that takes race into consideration on its face or under the surface.

For inquiries specific to your school district, and situations you want to review as it relates to this Letter, please contact any of the attorneys at Ennis Britton if you have questions or concerns regarding the Department of Education’s letter and your compliance.

[1] Frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf

[1] See our article on the February 14, 2025 Dear Colleague Letter: https://ennisbritton.com/blog/2025/u-s-department-of-education-gives-until-february-28-to-comply-with-new-federal-anti-discrimination-orders-of-risk-loss-of-funding

Look Ahead Am. v. Stark Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-2691.

On July 18, 2024, the Ohio Supreme Court determined that the Stark County Board of Elections misused executive sessions to discuss and plan the purchase of new property, specifically voting equipment. A company filed a complaint based on the Board’s decision to enter executive sessions on four separate occasions to discuss and plan for the purchasing of new voting systems. Both lower courts upheld the Board’s decisions after concluding that executive sessions were permitted for any purchase of property, but the Ohio Supreme Court disagreed. Reversing the decision, the Court clarified that executive sessions are permitted to discuss the purchase of property only to consider information “which would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”

Ohio’s Open Meetings Act permits a public body to enter executive session for the following reasons:

To consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with R.C. 505.10, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.

The courts agreed that the statute had a plain meaning, but they disagreed over what, exactly, that plain meaning was. According to the Supreme Court, the difference is based on punctuation and the rules of grammar. The lower courts both relied on the “rule of the last antecedent,” which applies a limiting clause or phrase to the noun or phrase that it immediately follows. Using that rule, the courts argued that the premature-disclosure clause only applied to the sale of unneeded, obsolete, or unfit-for-use property.

However, the statute’s use of commas modifies the rule of the last antecedent. Relying on several leading treatises on statutory interpretation, the Ohio Supreme Court argued that separating the antecedents and the qualifying phrase by a comma is evidence that the qualifier is supposed to apply to all antecedents. Under this interpretation, the premature-disclosure clause applies to every listed reason to start an executive session involving property, including the purchase of property, and not just the last reason as the lower courts suggested.

What this means for your district? This is yet another reminder that Districts must review and understand the public meeting exceptions rather than rely on memory and past practice. While Districts often recess into executive session to discuss property purchases, Districts cannot call executive sessions to discuss such purchases unless they can show that the premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.