June 2025
Number 22

On April 3, 2025, the United States Department of Education (DOE) sent letters (Request for Certification) to State Commissioners overseeing K-12 state education agencies requesting they certify compliance with Title VI and SFFA v. Harvard (SFFA v. Harvard) (2023) 600 U.S. 181, a recent U.S. Supreme Court decision. The four-page Request for Certification discussed Title VI prohibitions against discrimination on the basis of race, color, or national origin, which serve as a condition on an educational institution’s receipt of federal funding and warned of “serious consequences” for failing to comply with Title VI. In its April 11, 2025 response to the DOE, the California Department of Education (CDE) declined to sign the DOE certification statement but affirmed that California and its local educational agencies (LEAs) have already certified their Title VI compliance to DOE for the 2024-2025 school year.

DOE Request

In the Request for Certification, DOE quoted briefly from SFFA v. Harvard and indicated that DOE interprets that decision as prohibiting certain DEI practices that may violate federal law. The Request for Certification further indicated that continued use of illegal DEI practices may result in the loss of future federal funding and legal action to recover previously received federal funds. Additionally, the Request for Certification provided that DOE may pursue monetary damages and civil penalties under the False Claims Act against anyone who knowingly submits a false claim to the government for an entity that is out of compliance with Title VI due to certain DEI practices. DOE initially gave states ten days to respond but later extended the deadline to April 24, 2025.

CDE Response

In its response letter, CDE outlined three primary reasons for declining the demanded recertification:

1. California has already certified compliance. CDE’s response provided that the CDE and its LEAs certify compliance with Title VI annually, they have previously done so for the 2024-2025 school year, and those certifications remain in effect. 
2. The DOE’s request is too vague for CDE to certify. In its response, CDE stated that it is unclear what activities the DOE seeks to regulate with the certification because while the DOE Request for Certification references “certain” and “illegal” DEI practices, it does not specify the programs that would violate Title VI and “there are no federal or State laws prohibiting diversity, equity, or inclusion.” CDE further noted that federal courts have enjoined similar requests for certification involving “nebulous concepts.” 
3. The DOE cannot impose new requirements without going through proper rulemaking procedures. Agencies must follow certain procedures, such as following notice and public comment requirements, to give a rule the effect of law. The CDE letter expressed concern that, to the extent the DOE’s Request for Certification imposes a new requirement, it impermissibly changes the terms and conditions of federal funding without the required formal administrative process.

In its conclusion, CDE reiterated that California and its nearly 2,000 LEAs have already provided the requisite guarantee that its programs comply with Title VI.

CDE is not alone in its response to the Request for Certification. As of April 25, eighteen states, the District of Columbia, and Puerto Rico have stated their intention to sign the certification; several other states have declined to certify, many citing prior certifications of compliance. Enforcement of the DOE certification has been challenged in federal court, with at least three federal court decisions enjoining or limiting enforcement of either the DOE certification or the Dear Colleague Letter circulated by the DOE on February 14, 2025. However, further litigation is expected regarding these cases.

Takeaways

Since the DOE’s demand for certification was directed at states, there is no current action required of LEAs. As one of several states that has declined to sign the Request for Certification, California has asserted that the requisite certification of compliance with Title VI is already in place for this school year. We will continue to monitor the DOE’s response to the CDE response asserting compliance with the Title VI certification requirements for the 2024-2025 school year.

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