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Without federal guidance, institutions need their own written compliance standard

In a notice published October 23, the Justice and Education Departments said seven civil rights guidance documents, including the 2015 English learner letter, are not enforceable. The statutes behind them still apply, and institutions now need to show their own reading of those statutes.

About this piece

  1. FrameworkTitle VI
  2. PublishedOctober 23, 2026
  3. ByFractional Coordinator
  4. Reading time6 min read

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What happened

On October 23, 2026, the Department of Justice and the Department of Education published a joint notice in the Federal Register stating that seven guidance documents the two agencies issued together "are not enforceable." The notice (91 FR 66840, Document No. 2026-21685) was signed on October 20 by Harmeet K. Dhillon, Assistant Attorney General for Civil Rights, and Kimberly Richey, Assistant Secretary for Civil Rights at the Department of Education. The Departments say they "will not rely upon these guidance documents in their enforcement of federal civil rights laws," naming Title IV and Title VI of the Civil Rights Act of 1964, the Equal Educational Opportunities Act (EEOA), the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. They also say they plan to revisit the documents in light of Loper Bright Enterprises v. Raimondo (2024) to assess whether each is consistent with the "single, best meaning" of the statutes.

The seven documents are:

  • The January 7, 2015 Dear Colleague letter on English learner students and limited English proficient parents, with its accompanying fact sheet and its information sheet for parents and schools (three documents).
  • The May 10, 2021 resource on confronting COVID-19-related harassment in schools.
  • The May 26, 2023 resource on confronting racial discrimination in student discipline.
  • The August 14, 2023 Dear Colleague letter and the accompanying questions and answers on the Supreme Court's decision in Students for Fair Admissions v. Harvard (two documents).

The notice does not, in the text we reviewed, say whether the documents are rescinded or will stay posted. Press reports indicate the 2015 English learner letter had already been marked rescinded in August 2025.

Why this development is significant

The notice is a statement about guidance. It is not a rule, and it does not amend any statute or regulation. The Departments make that point themselves: guidance documents "do not establish legally enforceable responsibilities beyond what is required" by statutes, regulations, or binding judicial precedent. Guidance never had the force of law, so the formal legal change is small.

The practical change is larger. For years, these documents were the reference point an investigator would hold a program against, and the reference point many institutions wrote their own procedures to. That reference point is now gone, and the notice does not supply a replacement. It follows the same approach the Justice Department took in a July 20, 2026 notice on its Olmstead integration guidance under Title II of the ADA (91 FR 45287), and it comes three months after the Department of Education's July 24, 2026 final rule rescinding the disparate-impact provisions of its Title VI regulations (91 FR 46733). Read together, these actions move federal interpretation out of published guidance and into individual enforcement actions. On October 21, for example, the Justice Department announced Title VI findings against the Ohio State University College of Medicine's admissions process and said it would seek a negotiated resolution. Findings of that kind are where the federal reading of the law is now most visible, but they are investigative conclusions, not court rulings.

What it means for institutions

The obligations the documents described have not disappeared. What has changed is where an institution must look to find them, and how much of the program it must be able to defend on its own reasoning.

English learners in PK-12. The Supreme Court's 1974 decision in Lau v. Nichols held that, for students who do not understand English, "there is no equality of treatment merely by providing students with the same facilities," textbooks, teachers, and curriculum. Lau rested on Title VI and on federal regulations that reached discriminatory effects. The Department of Education has now removed disparate-impact liability from its own Title VI regulations, and both Departments have set aside the 2015 letter for enforcement purposes. The clearest federal source of a district's obligation is therefore the EEOA, which bars "the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs" (20 U.S.C. 1703(f)). The EEOA applies to state and local educational agencies, and it allows an individual denied an equal educational opportunity to bring a civil action (20 U.S.C. 1706). The notice lists the EEOA among the laws the Departments enforce. It does not say that the statute's requirements have changed. In our view, a district should expect its English learner program to be judged, by federal investigators, private plaintiffs, or its state, against the words "appropriate action," and it should be able to show what that action is without citing the 2015 letter.

Student discipline and harassment. Title VI continues to prohibit intentional discrimination, including in discipline and in an institution's response to harassment based on race, color, or national origin. Districts that built discipline reviews around the 2023 resource should not abandon them. Reviewing outcomes remains a sound management practice. What changes is the theory a federal reviewer is likely to apply: under an intent standard, the strongest record shows that written rules were applied the same way to every student, and that each harassment report received a documented response.

Admissions, outreach, and pathway programs in higher education. Press coverage describes the August 2023 letter and questions and answers as encouraging colleges to continue targeted outreach and pathway programs after Students for Fair Admissions. An institution that relied on those documents to justify a program should not cite them in a response to the Justice Department. Its October 21 Ohio State announcement states that an admissions process, "and all its stages," should apply equally to all applicants regardless of race. Program design should be defensible on the face of the program itself.

Disability. None of the seven documents is a disability guidance document by title, although the notice lists the ADA and Section 504 among the statutes it addresses. The Title II and Section 504 regulations themselves are unchanged by this notice.

What compliance leaders should review

  1. Search policies, procedures, training materials, board documents, and websites for citations to any of the seven documents. Replace each citation with the statute, regulation, or court decision the document was interpreting.
  2. For PK-12 districts, write a short statement of how the English learner program constitutes "appropriate action" under 20 U.S.C. 1703(f): how students are identified, what services they receive, who provides them, how progress is measured, and how the program is evaluated. Keep the evidence that supports each element.
  3. Check state law and state education agency requirements for English learners and language access. A change in federal guidance does not change a state's own requirements.
  4. Keep discipline data review in place, and add a documentation step that shows each disciplinary decision applied a written standard consistently.
  5. For colleges and universities, review outreach, pathway, scholarship, and admissions practices against the statute and Students for Fair Admissions directly, and against the reasoning in recent Justice Department findings, without relying on the 2023 questions and answers.
  6. Create an internal interpretation memo for each civil rights area: the governing legal source, the institution's reading of it, the date of review, and who approved it. A program that depends on whatever guidance is current will need to be rebuilt each time guidance changes. A program anchored to the statute will not.

What remains uncertain

The Departments have not said when their Loper Bright review will finish or whether replacement guidance will follow. The notice does not address whether the documents remain available on agency websites. Courts are not bound by the notice in either direction, so how judges will read 20 U.S.C. 1703(f) and Title VI in private suits is unchanged by it. It is also unclear whether further notices will follow for other jointly issued or single-agency guidance, including in Title IX and disability. Our description of the 2015 letter's August 2025 rescission rests on press reports, not on an agency statement we could retrieve.

Sources

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