Virginia colleges and universities are on notice: the U.S. Department of Education’s Office for Civil Rights (OCR) has warned that institutions failing to eliminate race-based decision-making could lose federal funding.

The supplemental , released Friday, follows the federal government’s directive for schools to stop considering race in admissions and other policies. It clarifies how the Supreme Court’s Students for Fair Admissions, Inc. v. President & Fellows of Harvard College ruling applies to ‘racial classifications, racial preferences, and racial stereotypes,’ and how OCR will enforce Title VI of the Civil Rights Act of 1964.

The Supreme Court’s decision in June 2023 effectively ended affirmative action in higher education, striking down race-conscious admissions policies at Harvard University and the University of North Carolina. In response, Virginia schools have revised their admissions policies to comply with the ruling.

Under President Donald Trump’s administration, the latest directive from OCR aligns with broader efforts to eliminate race-based considerations in education.

In Virginia, Gov. Glenn Youngkin and lawmakers took further action last year by banning legacy admissions. Youngkin’s administration has also instructed Virginia’s Boards of Visitors — governing bodies appointed by the governor — to eliminate all forms of racial discrimination on campus, according to by the Richmond Times-Dispatch on Tuesday.

Many of Virginia’s educational institutions rely on federal funding, including all 132 K-12 public school divisions. Federal dollars are critical in key areas such as support for students with disabilities and funding for at-risk schools — those serving students at higher risk of failing or dropping out.

Over the next two years, more than $2 billion in federal funds is set to flow to schools across the commonwealth.

“Virginia’s Department of Education is currently reviewing all of its programs to ensure full compliance with federal laws and to foster an educational environment for all students that is free from discrimination, as outlined in the letter and additional guidance from the U.S. Department of Education,” said Christian Martinez, a spokesman for Youngkin, in a statement. “Governor Youngkin expects that they will comply.”

Beyond K-12 schools, Virginia’s higher education system also stands to be affected. The state has 15 four-year public colleges and universities and more than 20 community colleges.

Bob Spieldenner, a spokesman for the State Council of Higher Education for Virginia (SCHEV), said the council is “closely monitoring potential changes to higher education policy at the federal level and reviewing the recently posted FAQs.”

Given the shifting landscape of executive orders, legal challenges and court rulings, SCHEV has not yet issues formal recommendations to institutions. However, Spieldenner said the council continues “to track developments and may, as necessary or helpful, provide opportunity for discussion or collaboration with Virginia institutions.”

The letter and guidance

The Trump Administration has moved to reinforce what it describes as schools’ “non-discrimination obligations“ with new directives from the U.S. Department of Education’s Office for Civil Rights. A published in February, followed by supplemental guidance in March, aims to clarify the restrictions on race-conscious policies for schools and other entities receiving federal financial assistance.

In the letter, Craig Trainor, acting assistant secretary for OCR, emphasized the department’s commitment to eliminating what it views as unlawful race-based policies in education.

“The department will no longer tolerate the overt and covert racial discrimination that has become widespread in this nation’s educational institutions,” Trainor wrote. “The law is clear: treating students differently on the basis of race to achieve nebulous goals, such as diversity, racial balancing, social justice or equity is illegal under controlling Supreme Court precedent.”

The letter advises all educational institutions to ensure that their policies align with existing civil rights law and warns against any form of race-based decision-making. It specifically directs schools to discontinue using race as a factor in admissions, hiring, promotion, scholarships, disciplinary actions, and other programs. Additionally, institutions are instructed to halt reliance on third-party organizations that assist in implementing race-conscious policies.

OCR’s additional guidance released Friday seeks to clarify its previous directive and address anticipated questions. One key issue was whether Diversity, Equity, and Inclusion (DEI) programs violate the Supreme Court’s ruling in the Students v. Harvard case.

According to the guidance, 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.”

Another question focused on whether schools can invite applicants to discuss race in their application essays. The Supreme Court barred race-based admissions policies, the guidance states, but institutions are still allowed to consider how race has shaped an applicant’s experiences — so long as they do not use it as a direct admissions factor.

“Schools that craft essay prompts in a way that require applicants to disclose their race are illegally attempting to do indirectly what cannot be done directly, as are admissions policies that hold brief interviews in order to visually assess an applicant’s race. It is ultimately racial preferences that are illegal, however accomplished,” the guidance states.

OCR also cautioned against what it described as attempts to “circumvent SFFA’s holding” through what some commentators have called the “essay loophole.”

“Schools can credit what is unique about the individual in overcoming adversity or hardship but never the person’s race,” the guidance states.

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The Assembly’s higher education committee considered a bill Thursday that sets free speech policies at Wisconsin’s public universities and colleges and provides penalties for violating them. Another bill taken up by the committee would eliminate race-based higher education loan and grant programs.

lays out certain provisions that the authors said are meant to help protect free speech and academic freedoms on University of Wisconsin and technical colleges campuses. Under the bill, UW institutions and technical colleges would be prohibited from restricting speech protected under the First Amendment as long as a speaker’s conduct is not unlawful and doesn’t disrupt an institution’s functioning.

Lawmakers introduced the bill after a found that a majority of students who responded said they were afraid to express views on certain issues in class. The committee held a about free speech on campus early this year in response to those concerns, seeking ways the Legislature could help facilitate free expression on campus.

Coauthor Rep. Amanda Nedweski (R-Pleasant Prairie) said during the hearing before the Assembly’s Colleges and Universities committee that the bill is a response to “serious concerns raised, both by testimony and by those survey results regarding a perceived lack of support for the free exchange of ideas on campuses, self-censorship and a culture of intolerance for conflicting ideologies.”

The bill also prohibits enforcing time, place and manner restrictions on speech, requiring permits or charging security fees for speakers on campus due to content of speech, designating “free speech” zones on campus and sanctioning people and groups for discriminatory harassment unless the speech targets people based on protected class under law and is “so severe, pervasive, and objectively offensive that it effectively bars a student from receiving equal access to educational opportunities or benefits.”

Beyond students, the bill also includes protections for instructors. Under the bill, UW and technical colleges would be prohibited from limiting an instructor’s expressive rights and academic freedom in conducting research, publishing work or lecturing, requiring students to participate in classroom exercises or speaking publicly as a private citizen on matters of public concern.

Republican lawmakers have increasingly expressed concerns that conservative voices and viewpoints are being suppressed on college campuses across the state.

Nedweski cited recent incidents as evidence of speech being curbed including the and backlash from students at UW-Madison campus after was invited by a conservative student group to give a lecture.

Nedweski, pointing to the survey, said that many students aren’t expressing their “authentic thoughts and ideas because they perceive that it may affect their grades or they worry about being socially canceled” and “self-censor, both in classrooms and informal situations, for fear of academic or social retribution.” She said that “supporting people’s rights to express opposing viewpoints is only fair.”

Rep. Jodi Emerson (D-Eau Claire) said she thought the conversation needed to consider the difference between speech people don’t like versus speech that is actually getting suppressed. She pointed out that Nedweski focused part of her testimony on students being “socially canceled” and was concerned about whether lawmakers were going too far.

“The way I look at it is, free speech is us, as a government body, saying you can’t do something,” Emerson said. “You saying something and then walking out and your neighbors are like, ‘You know what? I don’t want to talk to you anymore,’ because they didn’t agree with what you said, those are two totally different things.”

The University of Wisconsin System already has that sets out its commitment to freedom of speech and expression, including a few accountability measures. Nedweski said she appreciates that policy, but said the provisions in the bill would serve as the “added teeth” that will make current policies effective.

“What good is having a policy to protect free speech if there are no consequences when there are violations,” Nedweski said. “People see this and they lose confidence in the administration’s commitment to protecting their free speech. That has a negative ripple effect on the perception of campus culture.”

Under the bill, the attorney general, a district attorney or a person who alleges their rights were violated could bring court action against the UW System’s Board of Regents or the technical college district board under the bill.

A UW institution or technical college would be required to pay out the damages, court costs and attorney fees from its administrative expense money, if found to have violated any of the provisions in the bill. Damages, which would be capped at $100,000, would start at $500 for the initial violation plus $50 for each day after the complaint is served that the violation remains ongoing.

Institutions could also lose certain grants administered by the Higher Educational Aids Board and would be required to put a disclaimer about the violation on all admission-related notices for the next four years.

Jeff Buhrandt with the University of Wisconsin System told lawmakers that the university campuses are “very proud of the policy we have in place. It is a national standard,” and that UW System President Jay Rothman sees it as a priority and duty of the system schools to “help our students more effectively communicate with each other.”

Buhrandt said the UW System’s biggest concern is the penalties created by the bill. He said the UW System feels that accountability is at the Board of Regents, with the chancellors and with their annual review, but that they do want to see more reporting.

“We want to make sure that students know that there are avenues for them to report when these things happen,” Buhrandt said. “There haven’t been many reported incidents, and if that’s a flaw in our reporting system, then we have to increase that.”

Nedweski told lawmakers that the bill is not meant to punish the state’s institutions or administrators, but that it’s meant to put pressure on them to follow the law.

The bill also includes a requirement that public universities conduct a biennial survey of students and employees on First Amendment rights, academic freedom, perceived political or other bias at the institution or technical college, and whether campus culture promotes self-censorship, submit the results of the survey to the Legislature and provide students and employees with instruction on academic freedom, due process and First Amendment protections.

Bill would stop consideration of race for higher education loan and grant programs

Lawmakers also considered a bill that would end race-based loan and grant programs in Wisconsin higher education.

  would modify certain programs and requirements — including the state’s minority teacher loan program, minority undergraduate grants and requirements for the Medical College of Wisconsin and Marquette University School of Dentistry — so they apply to economically disadvantaged students only, rather than minority students.

The bill is the latest action by Republican lawmakers to target diversity, equity and inclusion initiatives in higher education.

Rep. Nik Rettinger (R-Mukwonago) said the bill is a reaction to the recent that struck down the use of affirmative action in college admissions. Rettinger, citing the Court’s finding that the University of North Carolina and Harvard violated the U.S. Constitution’s equal protection clause, said that all race-based discrimination is illegal and violates the principles of equal protection.

“It’s time for our state and nation to turn the page and progress forward,” Rettinger said. “In the end, this bill simply brings Wisconsin’s aid programs in line with the Students for Fair Admissions decision. It’s time for Wisconsin’s higher education system to follow the law and treat all students and staff equally.”

In response to a question from Rep. Shelia Stubbs (D-Madison), Rettinger said the bill is “absolutely” necessary.

Stubbs and other Democrats on the committee pushed back on the assertion that the state needs to cut race-based loans and programs in response to the U.S. Supreme Court decision.

Stubbs asked legislative counsel whether the state is currently in violation of the Supreme Court decision. Legislative counsel clarified that the admissions case decision only applied to race-conscious admissions decisions, so race conscious grants and loans are still legally permissible.

“Technically, this bill isn’t necessary because we’re not in violation,” Stubbs said to Rettinger.

Rep. Katrina Shankland (D-Stevens Point) said it seemed like the bill was “egging on” and “supporting” the Supreme Court to make additional decisions on the issue in the future.

The bill does not cut the programs, but rather eliminates the consideration of race and replaces any race-related terms for the term “disadvantaged”. It doesn’t define what “disadvantaged” means, but Rettinger said that was purposely done so that entities that oversee the programs had the ability to determine what constitutes a disadvantage — except for race, ethnicity, national origin, gender, sexual orientation and religion.

“This does not mean that we should eliminate aid to disadvantaged individuals. College costs continue to skyrocket and while the debate on the broken system, which continues to charge students exorbitant rates of tuition, room and board, lies elsewhere, the programs we have in Wisconsin to assist in covering the costs and accessing the halls of higher education institutions must follow the law and shift from race-based programs to eligibility based on true financial [need].”

Rep. LaKeshia Myers (D-Milwaukee), who testified against the bill, argued that the programs’ consideration of race takes into account past practices in the US.

“The reason the minority teacher loan program and others are even necessary is because of the need to rectify past discriminatory practices,” Myers said. “To eliminate the phenomenon of race within the context of these programs would be disingenuous. … It is impossible to divorce race from anything in America as race is indelibly linked to the American experience.”

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