Earlier this month, the U.S. Department of Education sent a memo to states’ education leaders asking them to certify that diversity, equity, & inclusion (DEI) related materials had been removed from schools in order to continue receiving federal funding. However, while the Colorado State Board of Education has not taken any official votes on the matter, several board members said at a hearing last week that they are skeptical of the letter’s legality and will likely not ask local districts to certify it.
While DEI typically refers to workplace inclusivity and sensitivity programs, conservatives in the Trump administration have used it to refer to any number of civil rights-related subjects, including teaching about racism in schools and allowing trans students to use the bathroom or participate in sports.
The federal letter, dated April 3, asks that school districts certify that they are in compliance with Title VI, specifically in light of the 2023 SFFA v. Harvard Supreme Court decision, which counted affirmative action as a form of racial discrimination. President Donald Trump’s Department of Education uses this as a legal basis to brand any DEI programs as violating Title VI.
The compliance is no small matter, as many Colorado schools rely on federal funding for about 10% of their K-12 schooling budget writ large, though some individual districts may require more than others.
However, Colorado school districts have already certified their compliance with Title VI, said Susana Córdova, Colorado’s state education commissioner, at the hearing.
“We have previously already signed assurances that we are in compliance with Title VI,” Córdova said. “Our districts have signed, assuring that they’re in compliance with Title VI. They do so on an annual basis in order to be eligible to receive federal funds. And so I want to make sure it’s really clear that those assurances are in effect and are binding and I believe very deeply in the purpose behind Title VI.”
Liberal members of the board sided with Córdova’s argument. Lisa Escárcega, representing CD1, noted that the letter does not actually define DEI.
“My thinking about declining to sign has nothing to do with whether I value DEI or not,” said Escárcega at the hearing. “If you ask me what it is, and I said, well, I could take you to 178 school districts and a hundred and so many classes, and I could show you bits and pieces. Could I describe it? Could I write it? Is it in law?”
“I will just say for as many examples as you can find that where people feel like, in a classroom, maybe there was some inappropriate exercise that people felt like they used DEI in the wrong way,” said Kathy Plomer during the hearing, who holds an at-large seat on the board. “There’s also been inappropriate exercises in classrooms where people who are students of color and other protected classes felt like their rights were. So we’ve got it going on everywhere, and it’s a struggle we have to work together and respect each other.”
Multiple members of the board cited the Paperwork Reduction Act, which requires that federal agencies like the Department of Education must receive approval from the Office of Management and Budget (OMB) before trying to collect widespread information, like in the case of the April 3 letter.
Discussing her position in the hearing, Córdova said the letter “has not been through that [OMB] certification. And so it would be unlawful to restrict federal funding because somebody declines to sign a document that we’re not legally obligated to sign. And furthermore, frankly, I would be uncomfortable signing a certification that binds us to federal guidance that doesn’t have the force of law.”
She also mentioned the letter’s lack of strict definition for DEI, saying, “I would be uncomfortable signing a certification that lacks definitions and clarity around what is or is not prohibited. And I think that’s particularly true, given that the certifications come with the potential consequences of loss of federal funds. And so I am not signing that. I’m not asking our districts to sign that.”
Conservative members of the board stated a range of opinions. Steve Durham, representing Colorado’s 5th Congressional District around Colorado Springs, voiced support for signing the letter and opposition to DEI. Previously, at a conservative event advocating against public education, Durham said he was “personally concerned about civics instruction [in schools] turning into some form of indoctrination.”
“The real reason, I think, behind not signing this is political rather than legal,” Durham told fellow board members in the hearing. “There can be significant debate or disagreement, I guess, about what DEI actually is, but there is plenty of evidence of its misuse and its misused to discriminate in employment and other prohibited manners that are prohibited by Title VI. … If the commissioner is unaware of these, and believes that these have not occurred, that we are not in violation of discrimination based on race, then there’s no reason not to make the certification.”
Yazmin Navarro, elected to the board’s 8th District seat last November, didn’t speak directly in support or opposition to signing the letter, but spoke in favor of handling these issues at the local level first.
“Board member Gephardt mentioned that there are some isolated incidents and some that don’t come to light, some that do come to light,” Navarro said in the hearing. “But my stance has always been very clear that we’re a locally controlled state, so if people are having these issues, we have to go to our local boards. We have to let them know what’s going on and it needs to be handled locally. And now if it’s not being handled locally, then it needs to be escalated.”
Kristi Burton Brown, from a conservative eastern Colorado district, voiced support for the arguments around the Paperwork Reduction Act.
“What I also want to point out in case anyone missed it in the letter because it’s lengthy, which has a good reason to be lengthy, that the commissioner did sign the current OMB assurance of compliance under Title VI. I think that is very important. A number of states that are refusing to comply aren’t doing that. I think that’s important, that Colorado is doing that as an extra assurance that we are complying with Title VI,” Brown said during the hearing.
Brown also went on to argue that local districts should be given the option to sign DoEd’s letter if they are worried about losing federal funding.
“If districts wanted to approach this differently and if they wanted to sign the letter that’s being asked of them, if they want to sign a second assurance and not rely on the fact that they submitted one earlier in the year or earlier in this school year, I think different districts are going to have different comfort levels with being willing to risk losing federal funding,” Brown said in the hearing. “So I would suggest that perhaps a follow-up be sent to districts.”
Brown, a former Colorado GOP chairwoman who is currently the Vice President of Advance Colorado, a conservative political group, emphasized in a radio interview earlier this week that, while she opposed DEI in schools, she thought that the letter indicated an overreach by the Trump administration and would set a bad precedent.
“So to explain, I do believe that the exact request from the federal government wasn’t done the right way,” Brown told radio host Jeff Hunt on KNUS’ “The Jeff & Bill Show” on Monday. “And no matter who is in charge, while I support what the Trump administration is trying to do here and get DEI out of schools, I don’t think they’re handling it the right way.”
She continued, “I think a lot of people, Jeff, are super excited about the fact that the Trump administration is making so much change so quickly. I’m excited about that too. But I do think there are some, some processes that we use at the federal level in order to respect state rights. And in order not to set the big power grab, that the next administration can turn around and do it all to us, the conservatives.”
Brown did not mince words on her opposition to DEI, and went on to equate DEI with racism.
“I think it is rampant in certain school districts across Colorado where they’ve taken a very bad thing, racism that everyone’s familiar with, treating kids of minority races differently. That was something that’s certainly happened in public schools across the U.S. for decades. That’s a very wrong thing,” she said. “But what they did is they took that and said, ‘Okay, now let’s not just end that and stop it, but let’s go in the opposite direction and teach white children that they are oppressors, and continue to teach minority children that they are oppressed.’”
