April 11, 2025

U.S. Department of Education
Office for Civil Rights
Washington DC, 20202

Via email to: OCR@ed.gov

RE: Request for Certification under Title VI

Dear Sir or Madam(1):

We received your “Request for Certification” dated April 3, 2025. Please accept this response on behalf of the California State Board of Education, the California Department of Education, and the State Superintendent of Public Instruction.

California and its local educational agencies (LEAs) have previously certified that they comply with Title VI of the Civil Rights Act of 1964 and its implementing regulation,(2) and California requires its nearly 2,000 LEAs (including traditional public schools and charter schools) to submit Title VI assurances annually, which they have already done for the 2024-25 school year.(3) These certifications remain in effect, as do other certifications and assurances regarding Title VI previously provided and communicated to and on file with the U.S. Department of Education (ED).

We are concerned that ED seemingly seeks to change the terms and conditions of California’s award without formal administrative process. ED cannot make changes to legal assurances and impose new requirements on recipients without adhering to rulemaking procedures. See 20 USC § 1232.(4)

It is also unclear which specific programs or activities ED seeks to regulate by this certification. Although the “request for certification” references “certain DEI practices” or “illegal DEI,” it does not define such, and there are no federal or State laws prohibiting diversity, equity, or inclusion. Similar requests for certification of compliance with such nebulous concepts have recently been enjoined by federal courts. See, e.g., Chicago Women in Trades v. Trump, 2025 WL 933871 at *8 (N.D. Ill.). There, the Court noted:

• Although the government emphasized . . . that the Certification Provision implicates only illegal DEI programs, it has studiously declined to shed any light on what this means. The answer is anything but obvious. Indeed, the thrust of the Orders is that the government's view of what is illegal in this regard has changed significantly with the new Administration—even though the government has not (in the Orders) and has been unwilling to (in its briefs or at argument) define how it has changed.
  
  Against this backdrop, the Certification Provision puts [Plaintiff] (and other grantees) in a difficult and perhaps impossible position.

(Emphasis in italics in original.)

The same is true here.(5) Indeed, ED’s own February 28, 2025 FAQs(6) concede that Title VI does not depend on the use of specific terminology such as “diversity,” “equity,” or “inclusion,” but nevertheless fail to explain what specific activities would violate Title VI under the administration’s current interpretation of that law. To the extent that ED has identified specific activities related to diversity, equity, and inclusion that it believes violate Title VI, please provide them.

As noted above, California and its nearly 2,000 LEAs have already provided the requisite guarantee that its programs and services are, and will be, in compliance with Title VI and its implementing regulation.(7) Our State remains committed to preventing and stopping discrimination and harassment and ensuring that all students are included and welcome in our schools regardless of any protected characteristic.

Please let this letter serve as our response to this specific request.

Sincerely,

Signed by

Len Garfinkel
General Counsel
California Department of Education

Kirin Gill
Chief Counsel
California State Board of Education

1. The request for certification was sent from a generic email address and is unsigned.
   
   
2. California has already provided the required “single set of assurances”, see 20 U.S.C. § 7844(a), in its consolidated state plan. See e.g., 20 U.S.C. §§ 7842(a)(1)-(2) (“in order to simplify application requirements and reduce the burden for State educational agencies” allowing for “a consolidated State plan . . . [or] application”); Id. at (b) (Secretary “shall collaborate with State Education Agencies . . . [and] “require only . . . assurances . . . that are absolutely necessary for the consideration of the consolidated State plan . . . application”).
   
   
3. See General Assurances and Certifications 2024-25, available at https://www.cde.ca.gov/fg/fo/fm/generalassurances2024-25.asp, “The following Assurances and Certifications are requirements of applicants and grantees as a condition of receiving funds. 1. Programs and services are and will be in compliance with Title VI and Title VII of the Civil Rights Act of 1964[.]”
   
   
4. When promulgating a rule with the force of law (i.e., “legislative rule”), agencies must undertake notice and comment and respond to the public’s comments on the proposed rule. Because this certification is an attempt to prescribe and enforce a nationwide legislative rule regarding “certain” undefined diversity, equity, and inclusion “practices” under the auspices of Title VI, it is improper. 5 U.S.C. § 553(b)-(c); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 95-96 (2015). ED has acknowledged that its own interpretations of Supreme Court cases are not law. See, e.g., Dear Colleague Letter, February 14, 2025, at p. 1, n. 3 (“This guidance does not have the force and effect of law and does not bind the public or create new legal standards); Frequently Asked Questions about Racial Preferences and Stereotypes under Title VI of the Civil Rights Act, February 28, 2025, p. 1, n. 3 (“The contents of this Q and A document do not have the force and effect of law and do not bind the public or create new legal requirements.”).
   
   
5. Moreover, the requested certification and other recent communications from ED represent an abrupt shift from its previous positions on diversity, equity, and inclusion. Former Secretary of Education Betsy DeVos informed ED staff in 2020 that “[d]iversity and inclusion are the cornerstones of high organizational performance.” See New York Times, February 14, 2025, “Trump Cracks Down on Diversity Initiatives Celebrated in his First Term.” Ms. DeVos also opined that “embracing diversity and inclusion are key elements for success” for “building strong teams.” ED has provided no explanation for how and why it changed positions. See e.g., Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 221–222 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (when changing positions agencies must “provide a reasoned explanation for the change,” “‘display awareness that [they are] changing position,’” and consider “‘serious reliance interests.’”).
   
   
6. See ED, Answer 8, “Frequently Asked Questions About Racial Preferences and Stereotypes under Title VI of the Civil Rights Act,” (February 28, 2025), available at https://www.ed.gov/media/document/frequently-asked-questions-about-racial-preferences-and-stereotypes-under-title-vi-of-civil-rights-act-109530.pdf.
   
   
7. Furthermore, the “Request for Certification,” which contains significant collection activities, was not issued in compliance with the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq. and is therefore invalid. See also 5 C.F.R. § 1320.3(c) (defining “collection of information”); 44 U.S.C. § 3506(c)(2)(A) (requiring notice in Federal Register and public comment period).

TT/LDH: