Washington State Encouraging Racial Discrimination in Taxpayer-Funded Daycare Centers

As part of its mission to become an "anti-racist organization" that works to "advance racial equity," Washington State's Department of Children, Youth, and Families (DCYF) has handed out millions in taxpayer dollars to childcare providers through an "equity" grant program that legal experts say is probably unconstitutional.

The DCYF, created in 2017, manages state programs related to early learning, juvenile rehabilitation, and child welfare. The department's employees are committed to upholding "racial equity" and "social justice" as "core agency values."

"We lead with race explicitly, not exclusively, because it is important to account for how race intersects with different forms of oppression and how racial equity and social justice affect all of us and our ability to thrive," says the Office of Racial Equity and Social Justice within Washington State's DCYF.

The DCYF manages the "Early Childhood Equity Grant" program, which gives daycare providers up to $100,000 in state funds for "culturally responsive programming," such as "preventing racial disparities in disciplinary action" like "expulsion," increasing "social-emotional teaching practices," improving "culturally and linguistically responsive practices," and "decreasing bias in the classroom."

The DCYF provides the following in example answers meant to give applicants an idea of what a viable "equity" project might look like:

My project will focus on preventing racial disparities in suspension and expulsion. We know that Black children are expelled from their early childhood education programs at much higher rates than non-Black children. We started tracking removals using child demographics in 2021, and discovered to our horror that this is also true at [facility name]: 40% of suspensions and expulsions at our preschool have been Black boys, although they only make up 15% of our student population. We have started training our teachers on implicit bias, and have contracted with a child mental health expert who is on call to coach teachers about challenging behavior, but we continue to see higher expulsion rates.

Legal experts who spoke to NR said that the programs probably violate the 14th Amendment by treating students differently according to race without demonstrating that doing so advances a compelling government interest.

"The state can hypothetically use race as a factor in a government program if it meets the strict scrutiny standards. But the Supreme Court has made clear that there has to be an incredibly compelling reason to use race in any sort of government program," said Judge Glock, senior fellow at the Manhattan Institute. "Washington State would have to prove that the remedy it is seeking is actually going to make up for a particular harm the state inflicted on a particular group of people in the past. It would most likely have to produce a report with a substantial body of empirical evidence that it has been participating in a discriminatory daycare system."

But not only is the grant designed to support projects that promote racially discriminatory concepts of "equity," the legislature also instructed the DCYF to award the grants equitably. The Fair Start for Kids Act, passed by the state in 2021, directs the department to "conduct an equitable process to prioritize grant applications for early childhood equity grant assistance."

While nearly all types of licensed providers are eligible to apply, the DCYF's "equity" grants may run afoul of the 14th Amendment by using the following criteria to prioritize grant recipients: "Facilities serving children who are Black, Indigenous, or People of Color," "Facilities serving children enrolled or eligible for membership in one of Washington's federally recognized tribes," "Facilities serving children receiving state, tribal, or military subsidies," "Facilities serving children experiencing houselessness or homelessness," "Facilities serving children in out-of-home care due to child welfare involvement," and "Facilities serving children who speak languages other than English at home."

An applicant receives one "priority point" for each of these prongs that it satisfies, which in turn improves the applicant's chances of receiving a grant.

The first question for the "prioritization" section in accessible DCYF applications is as follows: "Are any of the children in your care Black, Indigenous, or Children of Color? Please include any children who are American Indian/Alaska Native, Asian, Black, Hispanic/Latino, Middle Eastern/North African, Pacific Islander, or multiracial."

The DCYF and the governor's office did not respond to a request for comment by the time of publication. The Washington State Attorney General's Office responded via email by stating that it does not oversee or administer the grant program, and it added that any advice it has given to the DCYF is protected by attorney-client privilege.

To justify the consideration of racial preferences in the awarding of grants, Washington State would have to satisfy strict scrutiny by proving the program is narrowly tailored to advance a compelling government interest. Such a standard is hard to meet, especially after the Supreme Court's Students for Fair Admissions v. Harvard (2023) decision.

"The Supreme Court gave America a broad constitutional doctrine that race and ethnicity cannot be used as a factor in college admissions. Diversity is not a compelling governmental interest in college admissions," said Edward Blum, the president of the Students for Fair Admissions nonprofit organization that challenged Harvard's admissions scheme. "And if that is the case, then it must follow that diversity is not a compelling governmental interest in employment, fellowships, scholarships, internships, and contracting. Now comes the hard part of applying this important new opinion to our everyday lives, and it may take 30 years for American public and private institutions to give it up."

The DCYF released a report in January 2021 that attempted to highlight racial disparities across a range of outcomes related to children's well-being, such as healthy birthweight, kindergarten readiness, high-school engagement, and family economic security.  The report concluded that Asians showed "little [or] no disparity or [are] doing better relative to White comparison group" on all metrics, while both the black and Hispanic groups showed "notable disparities" relative to whites on four of the seven metrics.

In fact, DCYF reports that white children perform more poorly than black and Hispanic children on numerous outcomes. White children are more likely than black children to have attempted suicide at least once by tenth grade. Additionally, white children are overrepresented as compared with black or Hispanic children in interactions with Child Protective Services, and white children are overrepresented as compared with Hispanic children in referrals to court and juvenile rehabilitation.

The document does not cite specific policies as being discriminatory against children of color. "DCYF and its agencies of origin bear the historical legacy of exploitation and the current imprint of structural racism," says the report. "We acknowledge the role of our agency as it exists within the historical context of its predecessors and must use this knowledge to better understand our present-day agency systems, how they are embedded within broader social structures and dynamics, how they function, and how they can be improved."

Alison Somin, a senior legal fellow at the Pacific Legal Foundation, agreed that Washington State's grant program would probably fail a strict scrutiny test.

"There’s a limited number of interests that the Supreme Court has recognized as compelling, such as national security," Somin told National Review. "I'm skeptical that this program could pass any kind of strict scrutiny, since that's a famously tough and demanding constitutional standard."

The DCYF says it handed out more than $1.3 million in "equity" grants during the 2025–2026 cycle, and all of the 19 grant recipients serve children who are "Black, Indigenous, or Children of Color." In the 2024–2025 cycle, the DCYF awarded nearly $10 million in "equity" grants, and all 179 recipients reported serving minority children.

The DCYF itself directly receives federal funds and therefore must comply with the Civil Rights Act of 1964 — but the consideration of race in the awarding of its "equity" grants probably violates Title VI, which prohibits discrimination on the basis of race, color, or national origin in programs or activities that are operated by entities receiving federal financial assistance.

"This sort of grant seems unconstitutional, but also a violation of federal civil rights laws. You can't give preferences based on racial categories," said Josh Blackman, a professor of constitutional law at South Texas College of Law Houston. "It seems to be unlawful just from top to bottom, and the DOJ could unquestionably file suit."

During the Federal Fiscal Year 2024, the DCYF received more than $10 million from the Department of Health and Human Services through the Child Care and Development Block Grant Discretionary Funds and close to $1 million from the Department of Education through the Individuals with Disabilities Education Act. In 2021, the department received a grant totaling roughly $5.5 million from the Department of Human Services to be used through the end of September, 2025. In a document describing its budget, the department says it anticipates upwards of $38,000,000 from the federal government from 2025 through 2027.

When describing its "equity impacts" in its budget estimates, the department commits to assisting minority providers: "Providers are disproportionately women and women of color. Supporting these businesses with increased economic and administrative support further advances these businesses."

"Undervalued and underpaid positions disproportionately held by BIPOC in the early childhood workforce are rooted in the association between enslaved Black women and domestic work. Racial stereotyping and implicit bias also negatively impact children of color's participation in early childhood programs," says the DCYF in a document describing its "strategic priorities" from 2021 through 2026. "BIPOC, particularly Black children, are disproportionately disciplined and are more likely to be suspended and expelled from preschool than White children. This negatively impacts their developmental and educational progress and contributes to the 'preschool-to-prison pipeline.'"

In focusing on racial equity, DCYF has failed in other areas. A record number of child deaths and critical injuries in Washington State's child welfare system, which is operated in part by the DCYF, were reported in 2025.