Title VI And School Discipline: The Dear Colleague Letter And New Investigations

Key Takeaways:

• On August 18, 2026, the Department of Education issued a Dear Colleague Letter outlining its arguments against disparate-impact liability under Title VI and directing schools to stop considering race in connection with student discipline in order to comply with federal anti-discrimination law.
• Alongside the guidance, the Department announced two new Title VI investigations, one into a school district for allegedly directing teachers to consider “the disproportionality of discipline on students of color” in disciplinary decisions, and another into a different school district where education leaders allegedly characterized existing disciplinary policies as reflecting systemic “whiteness.”
• The Department’s recent actions suggest an interpretation of Title VI that not only forecloses disparate-impact liability as a basis for challenging a facially neutral discipline policy, but also prohibits schools from even considering whether students of certain racial groups are subjected to discipline to a disproportionate degree when crafting or implementing race-neutral student disciplinary policies.
• The Department’s interpretation of federal anti-discrimination law has broad implications and could foreshadow the federal government’s broader enforcement efforts against institutions that consider any race-related factors in their decision-making across all operations.

On August 18, 2026, the Department of Education ("the Department") took two actions related to school discipline. First, the Department issued a new Dear Colleague Letter titled “Guidance on Pupil Discipline and Compliance with Title VI.” Over 20 pages, the Department laid out its legal arguments against disparate-impact liability under Title VI—which the Department eliminated in July with its final rule; presented an analysis connecting the Department’s history of disparate-impact enforcement to school discipline issues over the last decade; and directed schools to cease considering race in connection with student discipline in order to comply with federal anti-discrimination law.

Second, in the same press release, the Department announced that its Office for Civil Rights (“OCR”) opened two Title VI investigations: one into a school district that allegedly sought to address “the disproportionality of discipline on students of color” when making discipline decisions, and another into a different school district where certain education leaders allegedly commented that the district’s discipline policies reflected systemic “whiteness.”

Together, the Department’s actions reflect a continued expansion of its interpretation of federal anti-discrimination law. Federal law, in the Department’s view, not only forecloses disparate-impact liability as a basis for challenging a facially neutral discipline policy, but also prohibits schools from even considering whether students of certain racial groups are subjected to discipline to a disproportionate degree when crafting or implementing race-neutral student disciplinary policies.

1. A Brief History of Federal Guidance on School Discipline

The Dear Colleague Letter is the latest action in a long-running back-and-forth between the most recent administrations over how Title VI applies to school discipline. In January 2014, the Obama administration issued a Dear Colleague Letter stating that facially neutral discipline policies could result in unlawful discrimination under Title VI if they have a “disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race.” The first Trump administration rescinded the 2014 guidance in December 2018. But the Biden administration restored the 2014 approach in a May 2023 Dear Colleague Letter that revived disparate-impact analysis in the student discipline context.

Just a few months into his second term, President Trump issued Executive Order 14,280, Reinstating Common Sense School Discipline Policies, and Executive Order 14,281, Restoring Equality of Opportunity and Meritocracy. Executive Order 14,281 states that “[d]isparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability,” which “runs contrary to equal protection under the law and, therefore, violates our Constitution.” Executive Order 14,280 directs the Secretary of Education to issue new guidance.

On July 23, 2026, the Department of Education amended its Title VI implementing regulations to eliminate disparate-impact liability. The Department specifically rescinded its Guidelines for Eliminating Discrimination and Denial of Services on the Basis of Race, Color, National Origin, Sex, and Handicap in Vocational Education Programs. The Guidelines, for instance, prohibited recipients of federal financial assistance from using any method to “allocat[e] … funds that has the effect of discriminating on the basis of race, color, national origin, sex, or handicap.” The Department’s Title VI regulations therefore no longer prohibit these categories of practices that appear neutral on their face but had a disparate impact on members of a protected class.

2. The Dear Colleague Letter: An Expansive Approach to Federal Anti-Discrimination Law

The majority of the 20-page Dear Colleague Letter published this week reiterates the administration’s position that disparate-impact liability is not supported by Title VI, the Constitution, or policy. The Letter notes that the May 2023 Biden administration guidance is in the process of being formally rescinded.

But the Letter goes further. The Department states that efforts to “systematically and consciously eliminate or reduce statistical racial disparities” in the disciplinary process are not required by Title VI or the Constitution and may, in fact, violate Title VI or the Constitution. The Letter provides examples of conduct that it considers unlawful:

• “a school discriminates based on race when it decides to forego, reduce, or increase discipline because of the student’s race”;
• “a school discriminates based on race when it foregoes, reduces, or increases a student’s discipline to ensure that the discipline matches that of another student simply because that other student is of a different race”; and,
• “a school’s decision to change its discipline policies with the purpose of avoiding or reducing racial disparities in discipline constitutes race discrimination.”

The administration’s position, in short, is that a school disciplinary decision is generally unlawful if race equity is simply considered as a goal or check in any part of the decision-making process, even if the resulting policy is race neutral.

This is not the first time this administration has set forth such a position—and, previously, their attempt to do so was rejected by a federal district court. On February 14, 2025, OCR issued a Dear Colleague Letter clarifying the office’s interpretation of Title VI and the Equal Protection Clause under the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (“SFFA”). The February 2025 Letter suggested that, under SFFA, race-neutral policies are unlawful if they are “motivated by racial considerations.” For instance, the Letter explained, “[i]t would … be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”

Legal challenges were quickly brought against this Dear Colleague Letter and, on August 14, 2025, the United States District Court for the District of Maryland vacated the Letter. Among other holdings, the Court determined that “[t]he Letter’s position proscribing race-neutral means of increasing all forms of diversity … is directly contradicted by binding precedent in this Circuit.” The court cited the Fourth Circuit’s 2024 decision in Coalition for TJ v. Fairfax County School Board, in which the Fourth Circuit explained: “To the extent the Board may have adopted the challenged admissions policy out of a desire to increase the rates of Black and Hispanic student enrollment at TJ—that is, to improve racial diversity and inclusion by way of race neutral measures—it was utilizing a practice that the Supreme Court has consistently declined to find constitutionally suspect.” The Supreme Court denied certiorari of the Fourth Circuit’s decision.

3. The Department of Education Immediately Launches Investigations to Enforce the Dear Colleague Letter

In the same press release issuing the Dear Colleague Letter, the Department announced that, “[i]n line with this new guidance,” OCR opened two new Title VI investigations.

First, OCR opened an investigation into the Fayetteville, Arkansas school district because, the Department alleged, “teachers were directed to take students’ racial identities into account when issuing discipline as part of an effort to bring about ‘restorative justice’ to address ‘the disproportionality of discipline on students of color.’” This investigation directly follows from the Letter’s position that schools may violate Title VI if they attempt to fix any disparate impact of their disciplinary policies.

Second, OCR opened an investigation into the Milwaukee, Wisconsin school district because education leaders allegedly “derided facially neutral school policies as reflecting systemic ‘whiteness,’ seemingly encouraging school officials to consider race in disciplinary practices.” The one-sentence description of the investigation provides little guidance on the Department’s thinking. Notably, the Department does not state that the Milwaukee school district actually “change[d] its discipline policies with the purpose of avoiding or reducing racial disparities in discipline,” which the Letter warned was race discrimination. Instead, the Department references only apparently critical comments by school leaders. The Department neither connects these alleged comments to actual discipline decisions nor addresses any First Amendment considerations for predicating an enforcement action on critical statements voiced by school employees or leaders.

We will continue to monitor developments to glean additional detail regarding the agency’s justification for opening these investigations under Title VI.

4. Implications for Educational Institutions

The Department’s positions in the Letter signal how the administration will seek to enforce federal anti-discrimination law moving forward. Colleges, universities, and schools that receive federal funding should consider the following: 

• Although the Dear Colleague Letter recognizes that it “lack[s] the force and effect of law and do[es] not bind the public or create new legal standards,” the administration can open investigations into institutions, freeze federal funding, and use other regulatory power to enforce its interpretation of the law. Institutions should be aware that although the Letter does not carry the force of law, it does reflect how the administration will seek to execute the law.
• The investigation into Milwaukee suggests that the Department considers both formal and informal statements in assessing the “purpose” behind disciplinary decisions. Institutions should be aware of all public-facing statements made by administrators with the authority to craft and execute school disciplinary policy.
• The Letter’s expansive interpretation of federal law should not be read to apply only to school discipline. The administration has already taken a similar position in other contexts, including admissions: it views the use of race-related goals in race-neutral decision-making as race discrimination. Educational institutions should assume this interpretation applies across school operations. We recommend that institutions audit current policies and programs to determine whether they discuss race-related goals or otherwise consider race in decision-making to understand the institution’s risk.

The Dear Colleague Letter may also foreshadow legal theories that other agencies may adopt and implement in their enforcement actions. On June 9, 2026, the Department of Justice’s Office of Legal Counsel issued an opinion that the U.S. Equal Employment Opportunity Commission’s (“EEOC”) Title VII guidelines were unconstitutional insofar as they allowed disparate-impact liability. The EEOC reportedly closed all pending disparate-impact investigations pursuant to an internal memorandum in September 2025, but as of the date of this publication, the EEOC’s website still states that Title VII prohibits discrimination through disparate impact—that is, it prohibits employers from “using neutral policies and practices that have a disproportionately negative effect on applicants or employees of a particular [protected category].”