The Colorado Department of Education has declined to comply with a Trump administration demand that threatens the elimination of federal funding for states failing to certify their removal of diversity, equity and inclusion programs.
On April 3, the U.S. Department of Education told state departments they had 10 days to sign a certification that their schools don’t promote any programs relating to DEI — which the Trump administration argues is illegal under the Civil Rights Act and the 2023 U.S. Supreme Court decision in Students for Fair Admissions v. Harvard.
The certification letter would have to include signatures from all local education agencies, including individual school districts, members of the Boards of Cooperative (Educational) Services and any individually authorized charter schools.
Failure to sign the certification, the letter stated, would disqualify states from receiving federal education funding.
“First and foremost, I think it’s really important to name that 100% we are in compliance with Title VI,” Colorado Commissioner of Education Susana Córdova said during an April 10 board meeting.
Córdova said the Colorado Department of Education has previously signed assurances of their compliance with Title VI and that districts in the state sign similar assurances on an annual basis to renew their eligibility for federal funds.
“Those assurances are in effect and are binding,” she said. “And because we have those on record, we are not going to be collecting and asking districts to sign (the) new assurance that came to us in that April 3 request.”
What makes the new certification request different is that it did not meet the necessary requirements under federal law to make it enforceable.
Assurances need to go through a federal law called the Paperwork Reduction Act, which certifies that requests are clear and don’t cause unnecessary burden, before agencies can compel mandatory collections of information.
Part of the law’s process requires that, before publishing requests for information like the Trump administration did, the agencies must post a public notice and hold two public comment periods to field any potential concerns with the request.
The certification letter sent to state departments on April 3 neglected to undergo either requirement and therefore has not been approved under the Paperwork Reduction Act, Córdova said.
“It would be unlawful to restrict federal funding because somebody declines to sign a document that we’re not legally obligated to sign,” she said. “Furthermore, frankly I would be uncomfortable signing a certification that binds us to federal guidance that doesn’t have the force of law. … I am not singing that. I am not asking our districts to sign that.”
Several board members criticized the letter’s lack of definition over what constitutes DEI activity, as well as the missing clarification over what is or isn’t prohibited.
“If you ask 15 people to define DEI, all 15 would define it differently,” said Board Member Karla Esser, a Democrat representing Congressional District 7. “So because we have no definition, I wouldn’t sign it to begin with, even if it did have an (Office of Management and Budget) number.”
Colorado was one of several states to confer with legal counsel before deciding whether to comply with the certification. While reviewing the legality of the Trump administration’s threat to withhold funding, Córdova had asked that districts “not take any actions” without guidance from the state department.
Now that the Colorado Department of Education has taken an official stance on the Title VI certification, it’s up to individual districts whether they want to take a different direction.
“I think that if districts want to approach this differently and if they wanted to sign the letter … and assure themselves that they’re going to keep all federal funding, then they have the ability to do that,” said Congressional District 4 Republican Board Member Kristi Burton Brown, adding that some districts may feel differently about their willingness to risk federal funding.
While not all states have taken an official position, First Assistant Attorney General Michelle Berge said several — including New York, Minnesota, Wisconsin, Massachusetts, Illinois, Pennsylvania and Washington — have declined to sign the certification for reasons similar to that of the Colorado department.
“We’re not alone in this choice,” Berge said, “but we’re continuing to closely monitor what’s going on.”
Córdova emphasized the department is nevertheless committed to upholding Title VI and said she would be signing the most recent federal Office of Management and Budget-approved civil rights assurance with her name so that the department’s commitment would be on the record. Previous commissioners of education have also signed the assurance in the past.
“The 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.
Board Member Sherri Wright, a Congressional District 3 Republican, agreed with leaving the enforcement of Title VI in the hands of state and local boards, using her own district as an example.
“My district has had some DEI issues, but our superintendent nipped it in the bud as soon as they found out about it,” Wright said. “I understand where you stand.”
As commissioner of education, Córdova has the authority to decide whether or not the state education department will comply with the Trump administration’s demand, meaning the decision did not go to a vote.
Congressional District 5 Republican Steve Durham, while in agreement that signing the certification was not legally necessary, proposed that if Colorado districts are being honest in stating that DEI is not being used as a mechanism to discriminate based on race, “then there’s no reason not to make the certification.”
“The real reason, I think, behind not signing this is political rather than legal,” he said. “There can be significant debate or disagreement about what DEI actually is, but there is plenty of evidence of its misuse.”
Earlier this week, both parties in a lawsuit challenging the U.S. Department of Education’s April 3 certification requirement reached an agreement that blocks the department from taking any enforcement action until at least April 24, meaning states and local education agencies are no longer being asked to submit the certification within the original 10-day deadline, according to the National Education Association.