The U.S. Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”) on May 7, 2025, clarified in a “Dear Colleague” letter its interpretation of what constitutes race-based discrimination under Title VI of the Civil Rights Act of 1964 (“Title VI”), Section 1557 of the Affordable Care Act (“Section 1557”), and the Equal Protection Clause of the 14th Amendment of the United States Constitution as applied to institutions of higher education, such as medical schools, and other entities that receive HHS funding in light of President Trump’s directives in Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity.

Evolving Application of Civil Rights Laws To DEI, Affirmative Action & Other Preferences

In Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), the Supreme Court ruled the DEI admissions policies applied by Harvard University and the University of North Carolina violated the Equal Protection Clause of the 14th Amendment. applies the case’s holding to Title VI and Section 1557.  The Court ruled the requirement of equal treatment prohibits discrimination absent proof of a compelling government interest under a strict scrutiny standard. The Court ruled the universities failed to demonstrate the necessary compelling interest. Accordingly, the Court found their application of rave or other preferences violated the 14th Amendment.

Under Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, President Trump directed federal agencies to enforce long-standing civil rights laws and “to combat illegal private sector diversity, equity and inclusion (“DEI”) preferences, mandates, policies, programs, and activities.”

HHS & ED Merit-Based Decisions Policy Investigations & Enforcement

During the second term of the Trump Administration, OCR has initiated seven investigations under federal civil rights law to promote merit-based opportunity.

The April 28, 2025 announcements of openings of discrimination investigations of Harvard by both HHS and ED of race discrimination investigation of both reports of race-based discrimination permeating the operations under Civil Rights Act is illustrative.

Opened in response to information HHS and ED received about policies and practices for journal membership and article selection, HHS’ and ED’s OCR investigations respond to reports of potential application of preferences in violation of EO 14173. 

The Harvard Law Review’s editor reportedly wrote that it was “concerning” that “[f]our of the five people” who wanted to reply to an article about police reform “are white men.” Another HLR editor suggested “that a piece should be subject to expedited review because the author was a minority.”

Based on these reports, HHS and ED suspect Harvard Law Review’s article selection process ‘picks winners and losers on the basis of race, employing a spoils system in which the race of the legal scholar is as, if not more, important than the merit of the submission. 

According to HHS and ED, these types of considerations based solely on race are illegal and unacceptable for recipients of federal funding.

“Law journal membership and publication are crucial achievements that build momentum for law students’ careers and shape legal scholarship,” said Anthony Archeval, Acting Director of HHS Office for Civil Rights. “This investigation reflects the Administration’s common-sense understanding that these opportunities should be earned through merit-based standards and not race.”

Acting Director Archeval warned, “Title VI’s demands are clear: recipients of federal financial assistance may not discriminate on the basis of race, color, or national origin. No institution—no matter its pedigree, prestige, or wealth—is above the law. The Trump Administration will not allow Harvard, or any other recipients of federal funds, to trample on anyone’s civil rights.”

The apparent triggering of the investigations based on “reports” of statements suggesting race bias of a nature often expressed within certain segments of many organizations highlights the challenges covered organizations are likely to experience in negotiating civil rights compliance. Health care, academic medicine and other organizations continue should ensure their merit based criteria and their underlying business justifications are clearly defined and defensible intheir form, design and administration.

Harvard stands to lose big if the investigations are not resolved in its favor. HHS and ED are threatening to terminate Carbert’s eligibility for federal funds from their agencies. Alongside the HHS and ED investigations, the Trump administration also has asked the internal Revenue Service to investigate whether Harvard’s policy of applying racial preferences, disqualifies it for continuing tax exemption under the Internal Revenue Code.

These high profile investigations are designed to send a strong signal to organizations to bring an end to DEI practices or face similar harsh consequences.

New Dear Colleague Letter Policy Clarification

This week , OCR followed up by sending out the Dear Colleague letter to reinforce and clarify its current policy on race preferences. Although the letter technically addresses, academic institutions, HHS says its principles apply to all programs funded and activities regulated by HHS.

The Dear Colleague letter reiterates that relying on race-based criteria, racial stereotypes, and facially neutral criteria that operates as a pretext for race are all prohibited under Title VI and Section 1557, including when diversity and racial-balancing are the aims. 

In implementing President Trump’s “merit-based’ Civil Rights Laws interpretation, OCR’ Dear Colleague letter states OCR will prioritize investigations of institutions that:

• Use race as part of their application or employment processes; 
• Require diversity, equity, and inclusion statements in connection with hiring or promotion; or 
• Lack clear policies demonstrating compliance with Students for Fair Admissions v. Harvard.

In light of OCR’s commitment to enforce this merit-based decision making requirement, the Dear Colleague letter advises medical schools and other entities receiving federal funding to ensure health care providers, and those in the health professions pipeline, are selected based on merit and clinical skills, not race,” said the Office for Civil Rights Acting Director, Anthony Archeval. HHS and ED also recommend academic healthcare and other HHS or ED funded organizations:

• Ensure their policies and procedures comply with existing federal civil rights laws;
• Discontinue criteria, tools, or processes that serve as substitutes for race or are intended to advance race-based decision-making; and
• End reliance on third-party contractors, clearinghouses, or data aggregators that engage in prohibited uses of race.

The author of this update, Cynthia Marcotte Stamer has decades of experience advising academic medicine and other education, health care providers, Medicare and Medicaid Advantage and other public and private health plans and plan sponsors, government contractors and grant recipients, and their child care facilities, employers, technology, data, third party administrators, and other managed care and other health care, defense, technology, life sciences and other clients about Civil Rights Laws and other discrimination, quality, technology, reimbursement, licensing and accreditation, compliance, enforcement, governmental affairs, dispute resolution, and other compliance, risk management and operational matters. If you have questions or need advice or help evaluating or addressing these or other compliance, risk management, or other concerns, contact her. 

For More Information

We hope this update is helpful. For more information about the  or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452-8297.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on workforce and other risk management and compliance.

Ms. Stamer’s work throughout her career has focused heavily on working with health care, health insurance and managed care, insurance and financial services, defense contractors, and other workforce and data sensitive businesses domestically and internationally on employment, benefits, data and other knowledge use and protection, Federal Sentencing Guidelines and other workforce and heath care management, internal and operational controls, regulatory and public policy and other legal and operational concerns.  As a part of this work, she has had extensive involvement in Civil Rights Laws, Section 1557 and other discrimination compliance, training, risk management and defense.

In addition, Ms. Stamer serves as a Scribe for the American Bar Association (“ABA”) Joint Committee on Employee Benefits annual agency meetings with OCR and shares her thought leadership as International Section Life Sciences Committee Vice Chair, and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. 

Author of many highly regarded compliance, training and other resources on cybercrime and other data privacy and security, health and other employee benefits, health care, insurance, workforce and other risk management and compliance, Ms. Stamer is widely recognized for her thought leadership and advocacy in these matters.  

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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