College’s Anti-Discrimination Policies Not Affected by “Dear Colleague” Letter, Elliott Says

On Feb. 14, the Department of Education instructed American colleges and universities through a “Dear Colleague Letter” to cease using race-based preferences as a factor in any college initiative, including admissions and on-campus policies. While the letter threatened to withhold federal funding from any college that did not comply with the Department’s instructions, President Michael Elliott affirmed that the letter is not binding as federal law and that Amherst has not altered any of its policies after receiving the letter.

Elliott said that the letter itself should be viewed as the department’s interpretation of existing federal law and that he believes that “this particular Dear Colleague Letter extends beyond a legal interpretation that would be upheld in court.”

“What the letter emphasizes is that we cannot violate federal anti-discrimination law, and that was already true before we received the Dear Colleague Letter, and that was already true before this administration came into office, so we have not altered any of our practices,” Elliott said.

The letter, authored by Acting Assistant Secretary for Civil Rights Craig Trainor, was an expansive interpretation of Students For Fair Admissions (SFFA) v. Harvard, a 2023 Supreme Court case that held that race-based affirmative action programs in college admissions were unconstitutional. In the Dear Colleague Letter, Trainor wrote that the decision reached in SFFA extended beyond simply admissions and also included “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

“For decades, schools have been operating on the pretext that selecting students for ‘diversity’ or similar euphemisms is not selecting them based on race. No longer. Students should be assessed according to merit, accomplishment, and character — not prejudged by the color of their skin. The Office for Civil Rights will enforce that commitment,” the letter said.

On Feb. 25, the American Council on Education (ACE), an association representing Amherst and other institutions of higher learning, wrote its own letter, calling on the Department of Education to rescind the Dear Colleague Letter. Elliott said this response signifies that Amherst’s view of the letter is shared throughout the country, as many institutions feel the letter “is both vague and goes far beyond the interpretation of the SFAA decision about admissions.”

While the Dear Colleague Letter threatened to begin assessing compliance by the end of February, Elliott said the only communication the college has received from the Education Department was a FAQ relating to the letter that was released last Friday, which he said he found “encouraging.”

“It seems to be almost a corrective to the original Dear Colleague Letter,” he said. “It seems to focus the attention much more on the actual law, rather than these areas that go beyond SFFA or existing civil rights law.”

Elliott conceded that although he is confident the interpretation laid out by the Dear Colleague Letter is not lawful, he worries about how future orders could be legally interpreted.

“I do think that everybody in higher education right now who cares about equality, who cares about access, is worried that the interpretation of existing law will begin to interfere with the steps that we’ve taken to make sure that our mission is available to everybody on this campus,” he said. “So I’m less worried about this Dear Colleague Letter than about what future letters like it or executive orders might say,” he added.  

Elliott mentioned he also worries about the threat of losing federal funding that hangs over the college. “We’re very worried that that federal funding may be used as an incentive to cause Amherst and other institutions to deviate from the mission, and that's something that we are going to be vigilant about,” he said.

As part of this vigilance, Elliott mentioned that the college has discussed the Dear Colleague Letter and additional executive orders in lobbying conversations with members of Congress. However, Elliott said these lobbying conversations are largely focused on issues related to a possible endowment tax, which needs congressional support.  

“The difference is that a Dear Colleague Letter or an executive order involves the executive branch. You know, that’s something that is not open to the same kind of opportunity to lobby,” he said. Instead, Elliott said that for issues relating to the executive branch, the college is “relying on professional organizations and looking for opportunities to make sure that our perspective is being heard and understood in Washington.”

According to Elliott, the administration briefed the college’s Board of Trustees on the Dear Colleague Letter at their latest meeting last weekend, along with a variety of executive orders and potential federal actions.

“The Board supported the actions that we’re taking — in some ways not taking — in relationship to the Dear Colleague Letter, but the Board doesn't take those actions itself,” he said.

Elliott concluded by affirming the college’s steadfast commitment to its educational mission, and diligence in regard to actions from the executive branch that may threaten it.

“The key thing is that we continue to evaluate these letters and executive orders as they come down,” he said. “We’ll keep watching them, and we will keep advocating for both our institutional autonomy and for academic freedom, and trying to make sure that that’s available to everybody on our campus.”