Recent communications from the U.S. Department of Education and the Trump administration have created confusion across the country. The laws have not changed, though. We know school leaders fear a loss of funding, but we are still required to follow current state and federal law.
It is important to remember that executive orders and “dear colleague” letters are not laws and do not require schools to eliminate programs they have been lawfully operating.
According to the U.S. Justice Department’s Bureau of Justice Assistance, executive orders are federal government management documents from the president. If there is a conflict between an executive order and the U.S. Constitution or an existing federal law, the U.S. Constitution and existing federal law prevail. Dear colleague letters provide guidance from an agency about how it will interpret a law, but the letter itself is not legally enforceable. That is for the courts to decide.
Oregon schools must maintain policies, programs and activities that are required by state law, such as anti-discrimination policies, educational equity committees and ethnic and tribal history curricula. School leaders should discuss with legal counsel the impact of recent federal communications on school programs and activities and should not eliminate programs without legal advice.
OSBA is creating and updating resources to help schools navigate these shifting times. Schools can reach out to OSBA attorneys for advice and direction to additional resources. OSBA’s Board Development can assist boards as they navigate difficult conversations. OSBA’s Policy Services can assist with making sure schools are up to date on their anti-discrimination policies. PACE members should notify PACE Claims if they receive a notice of an Office of Civil Rights complaint. If the claim is not covered by PACE but would have a statewide impact, please reach out to OSBA’s Legal Assistance Trust.
OSBA is here for you, our members, as you navigate these uncertain times. We are committed to supporting you so that schools can make informed decisions that are in the best interests of our students and families — decisions that put their needs, safety and unique lived experiences at the center of our thinking. Fear will not be our guide.
Here is the latest we know about several federal communications.
On Jan. 20, President Donald Trump signed an executive order titled “Ending Radical and Wasteful Government DEI Programs and Preferences.” On Feb. 21, a Maryland U.S. District Court judge entered a preliminary injunction blocking the president’s Jan. 20 executive order because of potential free speech and vagueness conflicts with the U.S. Constitution. The next step will be a full hearing on a permanent injunction.
On Jan. 29, the president signed an executive order titled “Ending Radical Indoctrination in K-12 Schooling” stating that his administration “will enforce the law to ensure that recipients of Federal funds providing K-12 education comply with all applicable laws prohibiting discrimination.”
The executive order directs the secretaries of education, defense and health and human services to provide a strategy to the president within 90 days of the order with recommendations and a plan for in part “eliminating Federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools.” As we see plans from these agencies, we will be considering the implications for schools and sharing more with you.
On Feb. 14, the United States Department of Education Office of Civil Rights released a dear colleague letter stating its understanding of discrimination based on race, color or national origin based on the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, which held that colleges cannot use an individual’s race when making college admissions decisions.
According to OCR’s website, its guidances, including the dear colleague letters, represent the Department of Education’s “current thinking on a topic” and do not create or impose any requirements “beyond those required under applicable law and regulations.” In other words, a dear colleague letter is not a law.
The Office of Civil Rights recently released a Frequently Asked Questions about Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act. This FAQ is intended to answer questions created by the Feb. 14 dear colleague letter. The FAQ explains that, while programs discriminating on the basis of race, color, or national origin would be considered unlawful by OCR,“ schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race. Nor would educational, cultural, or historical observances — such as Black History Month, International Holocaust Remembrance Day, or similar events — that celebrate or recognize historical events and contributions, and promote awareness, so long as they do not engage in racial exclusion or discrimination.”
The FAQ explains that if OCR determines a school is out of compliance, the school will be contacted in an attempt to negotiate a voluntary resolution agreement. If the school and OCR are not able to agree on a resolution, OCR may initiate an enforcement proceeding through the U.S. Department of Justice. This is the same process OCR has previously followed and is not a new process.
The Eugene School District recently joined a lawsuit challenging OCR’s Feb. 14 letter. A coalition of plaintiffs including the American Federation of Teachers and the American Sociological Association argue that OCR’s directive is unconstitutional and disrupts educational operations.
“This action seeks to ensure educators can provide meaningful instruction to students about historic or current events as required by state academic content standards, Oregon’s Ethnic Studies Standards, and the state’s Tribal History/Shared History curriculum. This action also seeks to continue to allow space and support for student affinity groups that improve student engagement and belonging, while reducing dropout rates,” Eugene wrote in a news statement.
OSBA remains dedicated to improving student success in Oregon. We will continue to fight for the needs of each student in Oregon to ensure that no matter their ability, income level, ZIP code or identity, all students receive the support they need to succeed. That is what equity means to us, and that is worth protecting. OSBA will continue to fight for civil rights, Title funds, school nutrition programs, student mental health and whatever else is required for a high-quality public education for all Oregon students.
OSBA is working with fellow education organizations, the Oregon attorney general’s office, the Oregon Department of Education and legal counsel to help you sort out what you need to do. We are seeking to understand the potential impacts on Oregon public education from federal actions, and we will share them with you as quickly and as clearly as we can.
We are using our resources and connections to give you fact-based information so you can make the best decision to serve all your students.
No matter what happens next, that remains our charge: To take care of every Oregon student.
Sincerely.
Emielle Nischik
OSBA Executive Director
