Horne: On DEI, AG Mayes is wrong and risks $770 million

Ignoring federal guidance is not optional

PHOENIX – Attorney General Kris Mayes is wrong in claiming that the Arizona Department of Education has no legal authority to withhold federal funds to districts and charters that fail to comply with new guidance regarding Diversity Equity and Inclusion programs, according to Superintendent Tom Horne.

Horne said, “I spent four years as Attorney General, and I follow the law strictly. The Arizona Department of Education has been responsible for distributing both federal and state education dollars to the schools for many decades and we must do so in accordance with the law. The U.S. Department of Education has issued guidance that requires my department to certify that all public districts and charters that take federal money use those funds according to that guidance, and that cannot be ignored. If I did, we would risk losing nearly $770 million in total federal funding to all public schools. That is obviously unacceptable, but the Attorney General is either unconcerned or unaware of that catastrophic scenario.”

Here are excerpts from the attached Secretary McMahon “Dear Colleague” letter that explains the role of all educational institutions, including State Education Agencies, and the threat of losing funds:

• Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon "systemic and structural racism" and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of "diversity, equity, and inclusion" ("DEI"), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.
• But under any banner, discrimination on the basis of race, color, or national origin is, has been, and will continue to be illegal.
• Other programs discriminate in less direct, but equally insidious, ways. DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.
• All educational institutions are advised to: (1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
• Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.

These are excerpts from the attached formal Title VI Guidance also outlining the issue and the role of all public education agencies:

• 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:
  • l . The use of the provisions of 42 U.S.C. 2000d-l to seek the "termination of or refusal to grant or to continue assistance under such program," eliminating federal funding for any SEA, LEA, or educational institution that engages in such conduct. [1]

Requested Certification:

On behalf of [SEA/LEA], 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.

On April 3 and again on April 9, the state department, through its Grants Management system, notified all public districts and charters regarding this guidance as well as an attestation that the guidance will be followed.

Under the guidance, districts and charters have until April 24th to certify compliance. Failure to do so will require the state – as the fiscal agent - to put a hold on federal dollars. To date, approximately 350 districts and charters out of 658 have certified compliance.