CHAMPAIGN — Some students at the University of Illinois Urbana-Champaign worry about the future of cultural houses on campus after the U.S. Department of Education issued a memo earlier this month stating that schools that support diversity initiatives could face funding cuts.
The memo says schools risk losing federal funding if they take race into account in hiring decisions and scholarships, and says educational institutions may “neither separate or segregate students… nor distribute benefits or burdens based on race.”
Legal experts say no one knows what exactly this means and whether this applies to cultural houses. But still — students like U of I junior Tommyia Lacy worry.
She said if cultural houses are banned, students will need to unite to preserve them.
“We have to be the Rosa Parks. We have to be the Martin Luther King,” Lacy said. “We have to be the people who fought for us right now. We can’t just sit back and keep letting things happen to us.”
Sean Garrick, U of I’s vice chancellor of diversity, equity, and inclusion, said the campus will comply with the letter’s demands — but what that looks like will depend on how it holds up in the courts.
He said officials have been conferring with their legal counsel to prepare for the potential outcomes of the memo, which is known as a “Dear Colleague Letter.”
“If for example, this ‘Dear Colleague’ letter stands up and says that we have to change a lot of our programming, I think we will do that, but it really all depends on how judges interpret the law,” Garrick said.
Last Friday, a federal judge largely blocked President Donald Trump’s executive order ending federal support for DEI programs, saying the orders are unconstitutional due to their vague language, violation of free speech and overreach of presidential authority. However, the Department of Education memo still states that the deadline for schools to comply with its demands is Feb. 28.
Several educator groups have sued to block the Department of Education from enforcing this guidance, alleging the letter violates free speech and existing civil rights law.
“This vague and clearly unconstitutional memo is a grave attack on students, our profession and knowledge itself,” said American Federation of Teachers President Randi Weingarten in a statement. “Federal statute already prohibits any president from telling schools and colleges what to teach. And students have the right to learn without the threat of culture wars waged by extremist politicians hanging over their heads.”
The Department of Education’s ‘interpretation of the law is not the law itself’
In a meeting with students on Monday at the Student Dining and Residential Programs Building, campus officials discussed the university’s budget for cultural houses. The meeting was a follow-up to an event on Feb. 10, where students shared their concerns about recent reductions in programming at the Bruce D. Nesbitt African American Cultural Center.
According to Garrick, “Dear Colleague letters,” like the Department of Education memo about DEI and funding, regularly occur at the start of every new administration.
“The letter signals how that administration intends to or thinks of interpreting the law, or what sorts of things they intend to prosecute,” Garrick said.
He explained that the memo can’t create a new law or change existing laws.
Instead, it’s a guidance document, said Jamelle C. Sharpe, dean of the U of I’s College of Law.
These kinds of letters “are meant to guide the public on what the agency’s understanding of the law is, but that’s all they do,” Sharpe said. “Their interpretation of the law is not the law itself.”
This means institutions, and any individuals the letters address, do not need to comply with its demands, he said.
The memo presents the Department of Education’s interpretation of the law based on the Supreme Court’s decision in Students for Fair Admissions for Harvard versus the University of North Carolina. According to the letter, the case’s final decision deemed that the “use of racial preferences in college admission is unlawful.”
“The Department is taking a very aggressive and expansive view of the Supreme Court’s decision,” Sharpe said. “They believe it should be applied to situations that the Supreme Court’s decision itself did not address.”
The letter explained that federal law prohibits covered entities from using race in decisions including hiring, financial aid, scholarships, graduation ceremonies, compensation and more.
The potential impact on university cultural centers is unclear
Whether the letter’s demands mean universities would need to ban cultural houses is unclear, according to Garrick.
“I think what it means is that you have to ensure that that cultural house is not for any one particular group of people via race or ethnicity, but rather it’s for the entire university community,” he said.
Although the letter is not enforceable, Sharpe said the Department of Education might take the issue to the courts, which could lead to universities being cut off from federal funding if they don’t comply with the agency’s demands.
Garrick explained that depending on how the letter is interpreted at the federal level, they might need to change student programming related to diversity initiatives.
“If all of that letter sticks, then we’ll have to make sure that we comply with all of it,” Garrick said.
Sharpe explained that the letter does not specify what it means for a program to have a racial component to it, which makes it difficult for institutions to know what they need to do to comply with the letter.
“We don’t know because it doesn’t specifically identify all of the activities or programs that could be swept into its reading of the decision and federal civil rights law more generally,” Sharpe said.
The importance of cultural houses and similar spaces on campus
It’s not uncommon for minority students to see only two or three other students of the same race in their classes, said Brandon Fizer, arts and cultural intern at the U of I’s Bruce D. Nesbitt African American Cultural Center (BNAACC).
Because of this, he said students of color might feel isolated and potentially want to drop out of school.
But cultural centers help, since they give minority students a sense of belonging and motivation to continue in higher education, he said.
“These cultural centers show us community and give us a reason and a passion to keep going,” Fizer said. “If I don’t have that sense of community, what’s stopping me from dropping out, what’s stopping me from not going to class?”
The issue is sparking conversations at campuses across the state and nation. Students at the University of Illinois Chicago have raised concerns over the possible ban of these cultural centers.
“It’s interesting that they’re saying if universities have anything racially based, they would pull back funding,” said Tommyia Lacy, who studies human development and family studies at the U of I and regularly visits BNAACC. “This whole institution that we call the United States of America was built on the social construct of race. ”
Lacy is a member of Zeta Phi Beta, one of the Black sororities at the U of I founded to create a space for Black women in a time when many were excluded from other sororities. During the early 1900s, many Black students were also excluded from dormitories, study groups and social organizations at predominantly white institutions, according to the Champaign County African American Heritage Trail.
“Black people had to come together and create a space that was safe for their own people,” Lacy said. “And I’m blessed to be a part of something like that.”
She explained that spaces like BNAACC and her sorority are integral for minority students to feel included and embrace their culture in a predominantly white institution with a history of discriminatory practices that had put certain students at a disadvantage.
“If you try to take race out of it after you’ve already instilled race in so many people and instill race in so many institutions, it’ll crumble,” Lacy said.
If BNAACC and other cultural centers were to shut down, Fizer believes this would contradict the U of I’s mission to prioritize diversity.
“If anything, that will show us that we aren’t a priority,” Fizer said. “To take all of that stuff away, we are left here on a campus with people that don’t look like us and told to fend for ourselves.”
Taking action — or not — could lead to adverse consequences
Because the letter seems to be influenced by Trump’s executive orders, Arden Rowell, U of I law professor, said it might also be seen as unconstitutional.
Due to people’s tendency to want to comply with authority, Rowell is worried institutions might adhere to the letter’s potentially unconstitutional demands — and then face adverse consequences for that.
“When the president or an executive agency like the Department of Education says something is the law, people tend to think that it is,” Rowell said. “They can end up taking actions that are unwise or illegal in the meantime.”
For agencies to make a rule a valid law and enforceable, they need to adhere to the Administrative Procedure Act. According to Rowell, agencies would need to give notice to the public about the new rule and allow the public to comment on it.
These procedures “help ensure that people have a chance to engage democratically with agencies so that the agency doesn’t just start enforcing things left and right that hasn’t been thought out well,” Rowell said.
However, Rowell explained the “Dear Colleague” letter is an exemption to this policy because it is a “general policy statement.” These statements don’t enforce new laws and are not legally binding. Because of the nature of general policy statements, she said Congress has typically deemed them not risky enough to enforce the Administrative Procedure Act.
“It’s supposed to be helpful guidance to people or industries so they know what to do,” Rowell said. “And something that’s strange and unusual about this letter is that it seems to do the opposite, making more uncertainty.”
‘The cultural houses are a necessity’
Rowell said cultural houses are a good example of an activity where it is unclear whether it is DEI-related or whether it has anything to do with race.
With the “Dear Colleague” letter’s deadline approaching on Friday, Feb. 28, the legal possibilities for the letter are endless, according to Sharpe.
“If [the Department of Education] moves forward, I guess that this will end up in the courts,” Sharpe said. “The courts, the judges are going to have to issue some view on what the law requires. And how long that takes is anybody’s guess.”
Despite all the uncertainty, U of I junior Tommyia Lacy said if these programs get shut down, students will need to unite to preserve them.
“It’s really scary to not know the outcome of things,” Lacy said. “We just have to fight for what we want and fight for what we need. This is a necessity. BNAACC is a necessity. The cultural houses are a necessity.”