Last spring, the Department of Education ordered all discrimination of protected characteristics, like race, sex, national origin or religion, to end. Diversity, equity and inclusion programs were implicated for advantaging some. The NAACP, states and labor unions sued.

The US Attorney General opened new fronts for conflict during the summer with a legal memo. Now, Massachusetts Gov. Maura Healey and Attorney General Andrea Campbell have circulated their own, advising districts to continue DEI work.

Days ago, the Trump administration cut millions in magnet school grants to Chicago, New York City and Fairfax, Virginia, for targeting minorities with aid.

While initial court skirmishes remain unresolved, the battle may be won or lost based on whether schools stand their ground.

“We are not going to let them bully us into abandoning our values. Not today, not ever,” said state Secretary of Education Patrick Tutwiler in a statement.

State and federal governments at odds

On Sept. 23, Healey and Campbell issued guidance to schools “in response to evolving court precedent and continuing attacks by the federal government on diversity, equity, inclusion, and accessibility.”

“Educational institutions should continue to foster diversity, equity, inclusion, and accessibility among their student bodies,” it reads.

Nothing in federal communications can change the “laws” and “legal principles,” which, “encourage — and even require — schools to promote educational opportunity for students of all backgrounds.”

That contradicts federal guidance.

“In recent years, the federal government has turned a blind eye toward, or even encouraged, various discriminatory practices, seemingly because of their purportedly benign labels, objectives, or intentions. No longer,” declared the office of U. S. Attorney General Pam Bondi on July 29.

She warned against preferential treatment or segregation by protected characteristics as well as using proxies, calling them “ostensibly neutral criteria that substitute.”

Noting that “policies or practices based on protected characteristics are subject to rigorous judicial scrutiny,” the July memo gives “examples of unlawful practices.”

The federal memo called out “geographic targeting” where program recruitment targets places or organizations primarily because of their racial or ethnic background rather than “legitimate factors.”

In contrast, state guidance allows colleges to take a “holistic review in admissions,” including income levels, being first generation, and any neighborhood or community circumstances.

For justification, they cite “binding precedent” of Boston’s ZIP Code-based exam school admission policies. The First Circuit Court of Appeals rejected a challenge to the BPS policy in 2021.

The Boston-based court cited a Supreme Court ruling that “the motive of increasing minority participation is not suspect.” The panel wrote, “Justice Kennedy not only ruled this motive permissible, but fortified its use by race-neutral proxies for accomplishing its end.”

Backed by three other circuit court precedents, the judges found that “considering racial data is not a racial classification and does not trigger strict scrutiny.”

The Supreme Court declined to take up the BPS issue last December. Still, BPS may amend its policy again soon.

To the federal government, “sex-based selection for contracts” are “unlawful.” Policies prioritizing women-owned or minority-owned businesses “over equally or more qualified businesses without preferred group status,” were described.

Massachusetts’s Supplier Diversity Program does just that.

The Supplier Diversity Office establishes “annual spending benchmarks” for Healey’s executive agencies.

Further, state law still requires every school district to appoint a DEI officer. Thus, the Trump administration has set a course that runs through Beacon Hill.

‘Evolving’ High Court precedent

State guidance for educational institutions explains two recent Supreme Court rulings. In 2023, SCOTUS ruled against the use of race in admissions at Harvard and the University of North Carolina. The Students for Fair Admissions [SFFA] decision has been interpreted broadly by the Trump administration to apply throughout grades K-12.

Largely based on the decision, the U.S. Department of Education sent letters to state education agencies earlier this year targeting DEI.

In Massachusetts, the SFFA ruling is interpreted narrowly. “The case has no direct application to programs outside of higher education admissions or to admissions policies that do not use race as a factor for admissions in the same way,” the state wrote.

And while the Healey-Campbell memo says “schools can and should assume that SFFA’s reasoning may extend” to benefits for particular students based on race, it nonetheless maintains “it is not unlawful for a school generally to take race into account” operationally.

Another SCOTUS ruling, Mahmoud v. Taylor, concerns LGBTQ+ storybooks introduced in Maryland’s Montgomery County school district.

Initially allowing parents to opt out of instruction when the books were read, the school board reversed course the following school year. The volume of opt-outs was infeasible. Parents sued.

Since public school is mandatory and alternatives are costly, the top court found that the curriculum “imposes the kind of burden on religious exercise” it had previously deemed “unacceptable.”

For the majority of justices, stories of same-sex marriage challenged the religious freedom of those who believe in only opposite-sex marriages. The books, read as early as kindergarten, are “unmistakably normative,” Justice Samuel Alito wrote for the majority.

“These books impose upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs,” six justices agreed. They feared the books “exert a psychological ‘pressure to conform.’”

Announcing guidance last week, Healey and Campbell advised that “K-12 schools should continue to use an inclusive, age-appropriate curriculum, which can include topics like race, gender, sexual orientation, gender identity, disability, and religion.” They wrote, “public schools should not interpret the Mahmoud decision as requiring or permitting them to erase particular groups from the curriculum.”

Education Commissioner Pedro Martinez said each district should “consider its unique circumstances and consult legal counsel” whether any opt-out policy is required.