Last week the U.S. Department of Education issued a “Dear Colleague” letter that warned colleges and universities that they could lose federal funding if they considered race in any of a broad range of campus and student policies.
The Department indicated it will begin assessing compliance starting no later than 14 days from issuance of the letter, adding that institutions failing to comply with its order may face an investigation.
The letter took an expansive and controversial view of federal civil rights law and the Supreme Court’s 2023 Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina decision that race-conscious admission policies were unconstitutional.
“Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law,” wrote Craig Trainor, acting assistant secretary for civil rights for the Education Department.
“Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life,” Trainor added.
Now, colleges are beginning to wonder just how far the Trump administration will push this interpretation, including whether it might insist that institutions retain standardized tests like the ACT and SAT as part of their admissions process.
Trainor wrote that while “some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations.”
The Department apparently will be on the lookout for colleges that attempt to rely on “non-racial information as a proxy for race” and then make decisions based on that information, Trainor suggested. As an example, it would “be unlawful,” he wrote, “for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”
Whether it would be unlawful or not has not been addressed by any court, and Trainor’s sweeping interpretation of the law will likely be subject to legal challenge. But one implication of the letter is that DOE might be preparing to make colleges that no longer require standardized tests as part of their admission process defend that decision in court.
Currently, according to FairTest, a leading opponent of standardized testing requirements, more than 2,100 colleges are test-optional or test-free in their admission policies for 2025. The majority of those schools adopted that approach after the Covid-19 pandemic disrupted testing on a massive scale.
While several leading universities such as Harvard University, Dartmouth College, Yale University, MIT and Stanford University have re-introduced an admission testing requirement, many others like the University of Michigan, Columbia University, Marquette University, Northwestern University, the University of California, and Penn State University have kept a test-optional or test-free policy in place.
Institutions employ test-optional policies for any of several reasons, including a desire to increase the number of applications, the intent to use a more holistic selection process, the belief that standardized test scores are flawed or weak predictors of academic success, the goal of increasing racial or socioeconomic diversity, or the fact that a school has an open-admissions policy or simply accepts the vast majority of its applicants.
Now, the question becomes how colleges will respond to what many will see as the broad overreach by DOE’s letter. Does the Supreme Court decision about race-conscious admissions extend to almost all aspects of academic life as Trainor maintains, or is it limited to admissions practices that had been used by a relatively small number of elite colleges? Might the DOE try to compel the use of standardized tests when selective colleges make admission decisions or select scholarship recipients?
“This is difficult and complicated — not susceptible to a simplistic broad brush,” said Art Coleman, founding partner of EducationCounsel LLC, according to The Chronicle of Higher Education. “There are conceptual nuggets in the letter that I think are right, like the simple premise that the SFFA decision likely extends beyond the contours of an admissions decision. I think it’s undeniably true. But that doesn’t mean that the decision extends in all settings or that the extension is a simplistic cookie cutter, as the letter seems to suggest.”
Akil Bello, FairTest’s Senior Director of Advocacy and Advancement, was more direct. “The DOE’s letter is a blatant overreach from the SFFA decision that goes far beyond repressive legalism and attempts to bully universities into adopting a suicide pact by narrowing access to higher education for deserving students of all backgrounds,” Bello told me.
He adeed, “for example, since both MIT’s and Dartmouth’s justification for returning to use of standardized tests was that the test would allow them to increase their diversity, the letter would indicate that requiring the tests is in violation of its guidance but also that they cannot stop requiring the test. The letter demonstrates a commitment by the administration to chaos rather than governing.”