On April 3, 2025, the U.S. Department of Education (“DoE”) published a Press Release communicating that DoE is requesting all K-12 school districts to certify (Certification Form) that they are not engaging in any practices inconsistent with the United States Supreme Court case, Students for Fair Admissions v. Harvard and Title VI’s anti-discrimination requirements (“Certification Request”). DoE’s stated purpose for the Certification Request is based on the following statement from the press release:
“Federal financial assistance is a privilege, not a right. When state education commissioners accept federal funds, they agree to abide by federal anti-discrimination requirements. Unfortunately, we have seen too many schools flout or outright violate these obligations, including by using DEI programs to discriminate against one group of Americans to favor another based on identity characteristics in clear violation of Title VI.”
Originally, DoE established a deadline of April 13, 2025, or ten (10) days after the issuance of the Press Release, for submitting the Certification Forms to the local educational agencies. However, on April 9, 2025, in a lawsuit filed in March 2025, against the DoE by the ACLU and other organizations in a New Hampshire federal court challenging the enforceability of DoE’s position on “illegal DEI”, DoE agreed to extend the deadline for submitting the Certification Forms to April 24, 2025. See March 5, 2025 ACLU Update. DoE also agreed that it will not initiate enforcement action, investigation, or otherwise take action based on any State or local educational agency (LEA) certification, lack of certification, or communication with DoE regarding the certification, until after the April 24, 2025, deadline has passed. DoE committed to communicating with the States to notify every LEA in its jurisdiction of this correspondence by close of business on April 10, 2025.
Definition of “DEI”
This Certification Request comes after DoE published a press release on February 15, 2025, directing school districts to end racial preference practices: February 15 DoE Press Release. The press release describes “illegal DEI” practices as those that would violate the Fourteenth Amendment’s Equal Protection Clause, which, after Students for Fair Admissions v. Harvard, prohibits all race-based classifications used in admission processes.
Other “illegal DEI” practices likely include policies/practices such as assigning oppressor/oppressed status based on race, and exclusion of certain educational opportunities based on race. Importantly, DoE has clarified that celebration of Black History Month or observance of other culturally significant activities, and curriculum focused on certain cultures, are not prohibited “DEI” practices. See DoE FAQ Regarding DEI Programs. At its core, DoE’s interpretation of “illegal DEI” programs and initiatives involves the exclusion of an educational opportunity on the basis of race, color, or national origin which may include the existence of a hostile environment. According to Wisconsin Public Radio, Wisconsin State Superintendent Jill Underly responded to the Certification Request with the following statement: “I am confident that [Department of Public Instruction] is in full compliance of federal requirements to receive federal funds.” See WPR Article on DoE Certification Request.
Concerns Regarding the Certification Request
The consequences, which may arise for failing to complete and submit the Certification, are unclear. Executive Orders and administrative guidance do not carry the force of law. In order to create a legally binding rule, federal agencies use a specific process generally referred to as “notice and comment rulemaking.” However, the receipt of federal funds is governed by contract law, which permits DoE to withhold federal funds if the recipient has failed to meet funding requirements. See Gebser v. Lago Vista Independent School Dist., U.S. Sup. Ct. (1998).
Recipients of federal funds are automatically subject to the anti-discrimination requirements imposed by 42 U.S.C. § 2000d (Title VI), and funds may be withheld to the extent that DoE believes that a school district is not compliant with federal anti-discrimination law. As evident from an Executive Order published on January 21, 2025, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, DoE is operating as if failure, or the unwillingness, to certify, will in and of itself provide a basis for withholding federal funds. The January 21, 2025, Executive Order states that the head of each federal agency (including DoE) shall include in every contract or grant award, “a term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Furthermore, a recipient may be liable for failure to take steps to ensure compliance. See U.S. v. Maricopa County, et al. Fed. Dist. Ct. AZ (2015).
The April 2025, press release states that “these certifications are being sent out pursuant the Department of Education’s authority and responsibility to ensure that recipients of federal funding are complying with United States civil rights law.” Therefore, DoE is threatening that failure to certify compliance with anti-discrimination law may provide DoE a basis for withholding federal funds.
Next Steps for Wisconsin School Districts
DoE explains that each “[state-level education agency] will be responsible for reporting on their state overall and for collecting certification responses from their Local Educational Agencies (LEAS).” In direct response to this Certification Request, on April 4, 2025, the Wisconsin Department of Public Instruction (“DPI”) communicated the following to school district administrators across the State of Wisconsin:
“The [DoE] is now requesting that all state education agencies and local school districts certify their compliance with the administration’s recent interpretation of certain federal laws in order to continue to receive federal funding…we are carefully reviewing the legal implications of this new directive and are working closely with other states and agencies to coordinate our response. We understand the importance of clarity on this matter, and we are doing everything we can to gather the details necessary to determine our next steps. Once we have more information, we will share it with you right away…”.
On April 9, 2025, DPI provided an update regarding the Certification Request on its website, here: DPI Update on Response to DoE Certification Request. In relevant part, the communication provides that:
- DPI sent DoE a letter responding to the Certification Request seeking clarification on the purpose and legality of the Certification Request. See DPI’s response to DoE’s Certification Request;
- DPI will NOT be requesting individual school districts to certify compliance with federal anti-discrimination law in accordance with the Certification Request;
- DPI will NOT be submitting certification to DoE in accordance with the Certification Request;
- DPI will continue to provide updates as soon as they receive additional information.
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Therefore, in light of the current circumstances, we advise that individual school districts take the next two (2) weeks to join us in exploring, evaluating, and collaborating with DPI, and other school law colleagues and partners in Wisconsin and nationally, to determine the risks and benefits of submitting a certification to DPI or DoE directly.
If DPI or a representative of DoE contacts you about the certification directly, we encourage you to contact your legal counsel for further information and discussion.
