One common critique of informal rulemaking by an executive agency—say, issuance of a “no action” letter, publication of an “interpretation” of a regulation or law, or some other expression of agency perspective—is that the executive branch is effectively legislating by abusing the coercive force of the communication. Agencies are supposed to exercise only the power that Congress has given them, and they are supposed to exercise it in a manner consistent with the Administrative Procedure Act, which specifies how agencies are to promulgate rules. When executive agencies go beyond their statutory authority, they may violate the separation of powers, or, in cases where the action will affect the conduct of entities also regulated by states, it may raise federalism concerns.
However, recent executive actions targeting institutions of higher education raise a somewhat different concern: an effect that could be called “decentralism.” Here, decentralism refers to the distribution of authority away from a central power and towards entities that may not be governmental at all, such as institutions of higher education or even private businesses. Consider an agency that issues a public statement explaining the law as it will be enforced. Suppose that public statement is not consistent with the Supreme Court’s interpretation of the relevant law. Now, there is a gap between the law and the agency’s interpretation of the law, and the wider this gap, the greater the space for varied responses from regulated entities. To be sure, compliance with the law always allows for discretion on behalf of the regulated entity. Neither the legislature, in drafting a statute, nor an agency, in clarifying and enforcing it, nor the courts, in interpreting these actions, can anticipate every decision a regulated entity may need to make and specify a required response.
By widening the gap between the law and agencies’ interpretation of it, however, the current Administration is encouraging greater decentralism. This raises concerns over whether agencies will succeed in compelling action that aligns with the Trump Administration’s priorities, but not the letter of the law. Especially when the interpretive gap is large, the possibility of anticipatory overcompliance—acceding to an agency’s informal statement that in fact goes beyond the law—is of particular concern. That is, in the face of uncertainty, some regulated entities will modify their policies and conduct to placate a regulator regardless of whether its commands or objectives are required by law.
This is what we have seen as universities have responded to the “dear colleague” letter issued on Feb. 14, 2025 by the federal Department of Education. The letter contained the Department’s interpretation of the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA), which found the use of race in admissions decisions at Harvard College and the University of North Carolina unconstitutional. The letter stated:
Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.
Even race-neutral policies, the letter went on to state, could constitute prohibited discrimination if undertaken to promote diversity. The stretching of the law is evident in the assertion that the majority opinion in SFFA “applies more broadly.”
In SFFA, the Supreme Court majority agreed that the consideration of race in undergraduate admissions decisions by the defendant universities, Harvard and the University of North Carolina, violated the Fourteenth Amendment. Chief Justice Roberts, writing for the majority, specified criteria that the institutions’ admissions processes failed to meet: “University programs must comply with strict scrutiny, they may never use race as a stereotype or a negative, and – at some point – they must end.” The rationales offered by the defendants for their use of race failed to satisfy strict scrutiny, Roberts wrote, because they were “not sufficiently coherent” to be subject to judicial assessment. Race operated as a negative for some applicants because “[c]ollege admissions are zero-sum… [and] [a] benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
Yet the majority opinion also included a remarkable paragraph explicitly allowing for the indirect consideration of race in those same, zero-sum admissions decisions. Chief Justice Roberts wrote that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” A university could provide a “benefit to a student who overcame racial discrimination, for example… [provided that it was] tied to that student’s courage and determination.” A university could also provide a “benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal [provided that it is] tied to that student’s unique ability to contribute to the university.” The instruction and examples make clear that applicants’ experiences involving racial identity can be factors in admissions decisions. And it is tough to square that conclusion with the language of the dear colleague letter.
The letter misstates the holding of SFFA in two ways. First, the conservative majority of the Court explicitly allowed for the consideration of race in admissions decisions in the context of applicant essay review, and second, the majority said nothing about the application of their reasoning to contexts that do not involve admissions decisions. The dear colleague letter, in contrast, asserts that the prohibition the Department read into the SFFA opinion applies to practices across the university, such as hiring, promotion, and “all other aspects of student, academic, and campus life.” The letter further asserts that the majority opinion in SFFA “sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI,” a group considerably larger than colleges and universities.
What, then, are colleges and universities to make of the divergence between what the Supreme Court stated, on the one hand, and what the Office of Civil Rights of the Department of Education subsequently claimed the Court stated, on the other? While the executive agency has not contradicted the nation’s highest court or called for conduct prohibited by statute, it has offered its own interpretation of the Court’s words. The Department raised the stakes for colleges and universities that had, presumably, already considered how best to respond to the SFFA ruling. Now, institutions that reached a different conclusion about what the majority opinion meant could find themselves at odds with the Department.
This illustrates one of two ways that the Department’s letter differs from the typical guidance provided by an agency. The Department’s action obfuscates, by misstating the law, rather than clarifies, by filling in gaps. Contrast this with another “dear colleague” letter put out in 2016 by the Biden Administration, instructing schools on compliance with title IX of the Education Amendments of 1972 in their treatment of transgender students. The letter stated that the law required that a school “not treat a transgender student differently from the way it treats other students of the same gender identity.” Title IX does not mention gender identity but bars discrimination “on the basis of sex,” so the letter attempted (or, to critics, purported) to clarify. (The Supreme Court ruled in 2020 that title VII of the Civil Rights Act, which banned discrimination on the basis of sex in the context of employment, also protected gay and transgender people.)
The second way the Department’s SFFA letter is distinct is in its target: the letter attempts to compel institutions to shut down efforts to support students who are members of historically marginalized and currently underrepresented groups on college and university campuses. That is, the 2025 letter aims to harm or enable harm to a vulnerable group, rather than to protect it.
The Department’s tactic opened up a continuum of possible responses. At one extreme, a university may try to anticipate and meet the demands of the letter; for example, by ending all consideration of race in admissions and other university processes. At the other end, a college could comply with its interpretation of the Court’s opinion by, for example, continuing to consider how race has shaped applicants’ life experiences.
As an empirical matter, colleges and universities have responded differently to the uncertainty created by this gap. Some have taken measures that appear to align with the letter’s more aggressive interpretation. The University of Southern California, for example, reportedly “scrubbed” references to diversity, equity, and inclusion from web sites. Others, like Rutgers University in New Jersey, have publicly affirmed that the school considers diversity necessary to students’ intellectual growth and resilience. While both New Jersey and California are blue states, ostensibly supportive of diversity in higher education, these diverging responses suggest geography is only part of the story (of course, geography may matter: Tennessee’s Vanderbilt University removed DEI references before receiving the letter). Furthermore, this variation is not a straightforward case of federalism—it is neither a top-down federal imposition nor a state-led response. In going beyond the Court’s opinion, the letter widens the zone of compliance, but only in the direction favored by the Administration.
Inconsistent interpretations of the law resulting in inconsistent policies at different colleges and universities would have real effects on students. Students who were previously supported by diversity and inclusion programming could have diverging experiences based on where their institution is located. This could reinforce inter-institutional diversity and intra-institutional homogeneity, as students enroll in places they feel welcome and whose institutional priorities they agree with. There is already some evidence this is happening.
Of course, space to pursue diverse strategies does not mean institutions must or will take different actions (in a footnote, the letter acknowledged it lacked the force of law). But reporting suggests the fearsome power of the federal government may, in the end, overcome any previous commitment to diversity, equity, and inclusion. Nevertheless, an attempt at coercion through an informal regulatory initiative like the dear colleague letter is not without risk for the agency itself. Some members of the regulated industry, that is, some colleges and universities, may not comply with the letter as the Agency intends. Agency leadership would then have to weigh an enforcement action and potential litigation that could undermine or undo the effect of its letter. On the other hand, allowing defiance could embolden other institutions to diverge from the letter. Furthermore, the specific way in which a college or university failed to comply and under what circumstances might affect agency decision-making and contribute to greater institutional inconsistency.
Consistency matters, especially for those who believe there is a correct policy or set of practices that colleges and universities should adhere to. This is the pernicious effect of decentralism: a diversity of policy choices can result in balkanization. Colleges will become tightly associated with the policy preferences they express, and their student body will share these preferences. Diversity of views at individual institutions will consequently decline, raising further concerns about democratic disintegration due to a failure to empathize and communicate.
The susceptibility of higher education to agency pressure is not unusual. Creating space for discretionary conduct by any regulated entity—whether it results in risky under-compliance or sycophantic over-compliance—is standard and inevitable. But because the dear colleague letter creates a stark divide between the actual law and the Agency’s agenda, affected entities are forced to weigh the risk of non-compliance with the agency’s legally flawed demands. Consequently, varied institutional responses will contribute to inconsistency and undermine the development of diverse and tolerant communities able to thrive in a pluralist democratic environment. In short, the letter will undermine an essential goal of education itself.
