Oregon refuses to certify no racial discrimination in education programs

State has offered scholarships to some racial groups and excluded others, in violation of federal law, but has certified compliance. It's now amending the law despite its defiant public stance.

President Lyndon B. Johnson signs the Civil Rights Act of 1964 into law July 2, 1964, with the Reverand Dr. Martin Luther King Jr. looking on. The Act prohibits racial discrimination in state programs using federal funds.

In a letter to its federal counterpart yesterday, the Oregon Department of Education refused to certify it is in compliance with Title VI of the 1964 Civil Rights Act and recent U.S. Supreme Court precedent, which ban racial discrimination in programs using federal funds.

ODE’s refusal came in response to an April 3 letter from the U.S. Department of Education in which USDOE asked states to certify compliance with Title VI and the holding in the 2023 U.S. Supreme Court case Students for Fair Admissions v. President and Fellows of Harvard College (SFFA v. Harvard) or risk losing federal education funding. For the 2021-2022 school year, Oregon received $1.2 billion in federal help, equal to $2,563 per student, according to usafacts.org.

Charlene Williams, ODE Director, wrote USDOE that ODE already certified compliance with Title VI, including in 2023, “has implemented and continues to implement education programs in accordance with state and federal law,” is confused by the requested certification and argued the request was violative of federal rulemaking and paperwork reduction laws. “Oregon remains fiercely committed to its values of diversity, equity and inclusion, and we celebrate our differences and common humanity,” Williams wrote.

That defiant tone, focused on diversity, equity and inclusion (DEI) was echoed by Governor Tina Kotek in a statement: “Since the start of the new federal administration, I promised Oregonians that I would not back down from a fight when it comes to safeguarding Oregon values.”

Oregon media followed course:

The Oregonian: “Oregon says it will refuse to comply with Trump’s DEI order on public schools”

Oregon Capital Chronicle: “Oregon governor, education director ‘hold the line’ against Trump funding threats over DEI”

Oregon Public Broadcasting: “Oregon rejects Trump administration’s school funding threat over DEI policies”

The dominant Oregon v. Trump on DEI storyline misses the point entirely. USDOE did not ask ODE to abandon its “values of diversity, equity and inclusion.” It asked ODE to certify compliance with federal anti-discrimination law signed not by Donald Trump, but by Lyndon Baines Johnson in 1964. The enactment of the Civil Rights Act of 1964 is commonly seen by left, right and in between as the apex of the civil rights movement that sought to end state-sponsored racial discrimination in the U.S. once and for all.

The problem is Oregon has been operating racially discriminatory programs in violation of the plain language of Title VI for years, in spite of its attestations to the contrary. Ironically, and unmentioned by ODE and Kotek, Oregon appears to have suddenly realized it’s on legal thin ice, having spent the past month scrubbing Title VI-violating language from an existing Oregon law and numerous bills moving through its ongoing legislative session.

This is an extremely important story, with over a billion dollars of federal education funding and potential civil penalties at stake for Oregon. Understanding some of the legal context of Oregon’s position is essential to knowing what is really going on behind the statements and press releases. Stick with me here and it’ll make sense, I think. K? K.

USDOE asked Oregon to acknowledge compliance with federal anti-discrimination law

Here’s the entirety of what USDOE asked ODE to do:

Requested Certification:

On behalf of _________________[[State Education Agency/Local Education Agency]], I acknowledge that I have received and reviewed this Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard. I further acknowledge that compliance with the below and the assurances referred to, as well as this certification, constitute a material condition for the continued receipt of federal financial assistance, and therefore certify our compliance with the below legal obligations.

Signature _____________

Date __________

Title and District or State _________________

The remainder of the letter lays out the ban on racial discrimination in Title VI, the Supreme Court’s holding in SFFA v. Harvard that the Equal Protection Clause of the 14th Amendment and Title VI “prohibit race-based action, with only the narrowest excxeptions,” and reminds states federal funding is and has long been contingent on adherence to Title VI.

It’s important to understand USDOE did not ask ODE to abandon its commitment to DEI. In fact, it mentions DEI only three times in one paragraph of a three-page letter:

Given the text of Title VI and the assurances you have already given, any violation of Title VI—including the use of Diversity, Equity, & Inclusion (“DEI”) programs to advantage one’s race over another—is impermissible. The use of certain DEI practices can violate federal law. The continued use of illegal DEI practices may subject the individual or entity using such practices to serious consequences, including [termination of federal funding, liability for breach of contract for false attestation of compliance and liability under the federal False Claims Act].

USDOE provides that “certain DEI practices,” not all DEI practices or values or goals, “can violate federal law.” Those that violate Title VI are “illegal DEI practices.” The USDOE letter asks ODE to certify all its activities, including but not limited to DEI practices, are compliant with federal law. It does not ask ODE to abandon or reject DEI practices generally.

So, what does Title VI say?

The text of Title VI is straightforward and has been in effect since LBJ signed it into law in a July 2, 1964, ceremony with the Reverend Dr. Martin Luther King Jr. watching over his left shoulder:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

That’s it. That’s Title VI. It remains the law of the land.

How does SFFA v. Harvard change things?

As applied to Oregon’s past certification of compliance with Title VI, and its current refusal to do so, the Supreme Court’s holding in SFFA v. Harvard does not change much at all, for reasons I’ll explain shortly. However, because the USDOE request for certification includes it, it bears brief explanation.

In the case, the Court held that the race-based admissions practices of Harvard University and the University of North Carolina violated Title VI, and in the case of UNC, a state institution, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The Court held the Equal Protection Clause and by association Title VI “represent a foundational principle - the absolute equality of all citizens of hte United States politically and civilly before their own laws.” The Equal Protection Clause “forbids discrimination by the General Government, or by the States, against any citizen because of his race.”

SFFA v. Harvard was, in my view, a corrective to decades of incoherent Supreme Court cases that cast into doubt, for those who wanted to doubt, the illegality of racial discrimination under federal law. However, even before SFFA v. Howard was decided in 2023, blatant legal discrimination based on race was widely understood to be unlawful. That’s why colleges like Harvard, UNC and other institutions of higher learning sought to conceal the fact their admissions policies were designed to benefit some applicants, and harm others, on the basis of the applicants’ race.

In administering its vast education programs, Oregon surely engages in this kind of semi-concealed finger-on-the-scale in favor of racial groups it prefers at the expense of others. Those practices were at least plausibly legally supported pre-SFFA v. Harvard. They are on extremely thin ice now.

But Oregon’s penchant for racial discrimination has gone far, far beyond the admissions policies at issue in SFFA v. Harvard. The state enacted, maintained and enforced openly discriminatory laws which were banned by Title VI before SFFA v. Harvard, falsely certified it was in compliance, and has for the last month tacitly acknowledged its violation of Title VI by furiously scrubbing racially discriminatory language from Oregon education law and bills moving through the legislature.

Oregon’s blatantly, unlawfully discriminatory education law

Buried in Oregon statutes is ORS 298.295, entitled, accurately “Scholarships for culturally and diverse teacher candidates; rules.” The law was passed and signed into law in 2017, and allows the Higher Education Coordinating Commission to “award scholarships to culturally and linguistically divrse teacher candidates . . . for the purpose of advancing the goal described in ORS 342.437.” The maximum amount of a scholarship is $10,000. The website for the resulting program invites applicants to fill out federal financial aid forms, suggesting federal funds pay for at least a portion of the scholarships.

ORS 342.437 establishes the goal of the state is “that the percentage of diverse educators employed by a school district reflects the percentage of diverse students in the public schools of this state or the percentage of diverse students in the district.” The word “diverse” as used in the statute is defined as “culturally diverse characteristics of a person, including . . . Origins in any of the black racial groups of Africa . . . Hispanic culture or origin . . . Origins of the original peoples of the Far East” and Native American origin.

Put that all together, and Oregon has been operating a teacher scholarship program available only to members of the aforementioned racial and cultural groups, to the exclusion of all other racial and cultural groups. This is in flagrant violation of Title VI before and after SFFA v. Harvard. Yet, as ODE points out in its letter, it was happy to certify no Oregonian is “excluded from participation in . . . any program or activity receiving Federal financial assistance” as recently as 2023.

An Oregon legislative committee voted to remove explicit racial requirement day before ODE’s letter

The Oregon legislature has been meeting since early this year. April 9, the day before ODE wrote, but refused to certify, that it was acting in compliance with Oregon and federal law, including Title VI, the House Education Committee approved an amendment to a bill that would remove the ORS 298.295 requirement that scholarship recipients belong to a certain racial or cultural group. Instead, the bill as amended would require scholarships be given to “teacher candidates who have experience with diverse populations[.]”

The shift from requiring membership in a racial group to receive a sholarship to requiring “experience” with people in those groups is legally important. It does not mean Oregon does not want to give these scholarships to the racial groups defined in law (it does). It does mean that Oregon knows it cannot maintain overt discrimination in at least one of its laws. That overt discrimination has been unlawful since before the scholarship program arose in 2017.

Oregon Roundup exclusively reported the legislature has been amending a host of education bills over the past month to remove overtly discriminatory language, often based in the same definition of “diverse” that plagues the teacher scholarship program. The pattern was so strong, we reported April 3 that it was odd the Education Committee was moving HB 3200 with the explicit racial language intact. Later that day, the amendment removing that language and amending ORS 298.295 was introduced.

What it all means

Oregon has operated, since at least 2017, at least one education program using federal funds that excludes participants based on race, in violation of Title VI of the 1964 Civil Rights Act. The Oregon Department of Education has nonetheless certified, as recently as 2023, that it complies with Title VI.

Under pressure of losing federal funding for noncompliance with federal law, Oregon appears to have this year realized its blatantly discriminatory program is in fact in violation of Title VI, and has embarked on a furious but quiet effort to remove discriminatory language from the laws governing the program.

Oregon now strikes a falsely defiant public stance, in spite of its concurrent rapid retreat from the mostly blatantly unlawful discrimination. In truth, that discrimination has been unlawful under President Donald Trump, President Joe Biden and once again under President Donald Trump.

The only difference, now, is Oregon knows it runs a $1.2 billion risk if it continues to pretend, and in my view falsely certify, its discrimination is lawful.