Tag: antiDEI

  • Anti-DEI rhetoric is not same as legal reality (opinion)

    Anti-DEI rhetoric is not same as legal reality (opinion)

    The Trump administration’s anti-DEI playlist has been booming out onto the quad since Inauguration Day. Executive orders denounced “dangerous, demeaning, and immoral race- and sex-based preferences,” and the Department of Justice promised to investigate “illegal DEI” activities. The Department of Education asserted that universities have “toxically indoctrinated students” with ideas about “systemic and structural racism” before launching its “End DEI Portal.” Meanwhile, more than 30 states have considered or enacted laws curtailing DEI.

    University responses have been varied and sometimes chaotic. Some have canceled, then reinstated cultural events. Some have scrubbed DEI websites and canceled race-focused events. Others have vowed to “resist.” More than 60 higher education organizations called on the department to rescind its DEI Dear Colleague letter, while one lawsuit seeks to block the DCL and another has won a preliminary injunction as to the executive orders.

    In sum, this is the year the culture war turned into a food fight. It’s understandably chaotic, but the chaos isn’t entirely warranted by the legal moves the administration is making. Behind all the angry words are sober laws that didn’t change on Inauguration Day. The administration’s attack on DEI is rooted in Title VI of the Civil Rights Act of 1964. Naturally, that seminal law doesn’t mention DEI. Here’s what it says:

    “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

    The anti-DEI initiative is based on this law because, unlike other antidiscrimination laws, it prohibits differential treatment almost without exception. This has been especially true since Students for Fair Admissions vs. Harvard, the 2023 Supreme Court case that ended affirmative action based on race.

    Why Title VI?

    Title VI, which bars racial discrimination, is very different from the antidiscrimination laws covering sex and disability, since those laws often require the kind of differential treatment that is illegal in matters of race. For example, Title IX does not require that women and men try out for the same basketball team. To the contrary, it requires that men and women be given equal opportunity to benefit from the program, which in some cases requires the kind of separate-but-equal approach famously made illegal by the Supreme Court in Brown v. Board of Education. Disability laws are even more rooted in equitable practices like reasonable accommodation, accessible facilities and so on. Discrimination is avoided not by treating people the same but by treating people differently in certain defined ways.

    One key difference between conservative and progressive approaches to antidiscrimination law is about equal versus equitable treatment. Conservatives lean toward equal treatment where possible, so the law that achieves that most clearly is found in Title VI and its constitutional corollary, the equal protection clause of the 14th Amendment. The resulting law is simple and powerful: no differential treatment based on race, color or national origin.

    But it is also quite narrow. It doesn’t make DEI illegal, and it won’t “dismantle DEI.” That would require new laws, restricted funding and so on. All that may happen, and some already has—but it can’t be achieved with Title VI, even in the hands of an energetic Office for Civil Rights.

    Political Rhetoric vs. Legal Reality

    The yawning gap between political rhetoric and legal reality is perfectly embodied in the Education Department’s new “End DEI Portal.” Its provocative name appears in the press release—but not on the portal itself, which never mentions DEI (save for in the domain name). The portal is a complaint form for “illegal discriminatory practices at institutions of learning” based on civil rights law. It’s a tool constructed by lawyers that differs little from the Biden-era complaint form.

    To be sure, the “End DEI Portal” name will induce people to report practices that aren’t illegal—and that will have a chilling effect. But its implementation sticks to the letter of the law. There are many other examples like it.

    Breaking Down the EO and DCL

    The Jan. 21 executive order on DEI has sweeping political language, but its legal provisions are quite conventional. Agencies are ordered to end “discriminatory and illegal” activities and enforce civil rights laws—two long-standing obligations, though opinions vary on how well they have been carried out. It instructs agencies to “combat illegal private-sector DEI preferences” and describes “illegal DEI” as programs “that constitute illegal discrimination or preferences.” For example, under the executive order, federal contractors must now certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Not any DEI program: any that violate antidiscrimination laws.

    The phrase “illegal DEI” invites misunderstanding—but it does not, nor could it, mean that DEI programs are illegal.

    Importantly, the executive order says it cannot limit free speech or teaching —even if that speech or teaching advocates for “the unlawful employment or contracting practices prohibited by this order.” These sober reassurances come near the end, several paragraphs after many people appear to have stopped reading.

    OCR’s Dear Colleague letter is made with the same ingredients: Heated political language condemns DEI programs, while legal language tracks Title VI. The upshot is that, in the department’s view, differential treatment based on race, color or national origin violates the law. OCR followed up with an FAQ document laying this out in detail. It is rooted in law familiar to every civil rights lawyer, and it follows a strict reading of Title VI law that comes from Students for Fair Admissions.

    Problems Still to Be Solved

    Well before the 2024 election, several public universities ended race-based scholarships, and Duke University transformed a race-based scholarship into a program open to all. In a sense, it’s surprising that scholarships based on race or national origin survived this long. The federal regulations implementing Title VI mention financial aid nine times in the section prohibiting discrimination on the basis of race, and this language has been the same since at least 1980.

    But even simple things can be uncertain in law. A related regulation allows that universities “may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.” This would seem to open the door to scholarships and perhaps other practices based on race. But Title VI of the Civil Rights Act never mentions affirmative action, and the 14th Amendment’s equal protection clause may forbid it.

    Because of the obvious risks, university programs have long been designed not to classify people by race, color or national origin—but some common practices are in for some scrutiny. Consider a donor who has made a restricted gift to provide scholarship support to students from a specific country—it doesn’t matter if it’s Canada or Kenya. Since Title VI bars preference by national origin, can the university no longer offer that scholarship? If so, how should it be altered to conform to Title VI? Possibilities like this almost seem absurd, but they are among the issues colleges are working out right now.

    Race-based housing or mentoring programs are certainly open to challenge, but it remains to be seen how many such programs there really are. It isn’t illegal for a student club, house, activity or even a scholarship program to be of interest mainly to students of one race. It becomes a problem when a college compels behavior or allocates resources based on race. Take housing as an example. Ethnically themed houses are pretty common, and many are open to anyone. If selection is race-neutral, these should be fine. But it will be no surprise if OCR chooses to investigate housing assignment processes to confirm that they are actually race-neutral.

    The State Attack on DEI

    Over all, the law hasn’t changed much at the federal level, though its enforcement is sure to be more focused. When all the dust has settled, this may be true at the state level, too. I won’t describe the legislation pending in all the different states, but a quick look at Iowa’s DEI laws may shed some light.

    Iowa’s HSB60 is titled “An Act prohibiting private institutions of higher education that participate in the Iowa tuition grant program from establishing diversity, equity, and inclusion offices.” The bill, which closely follows the structure and language of similar legislation passed for Iowa’s public universities last year, does what the title says, so the question is— what is the definition of “diversity, equity, and inclusion” under Iowa law? For both private and public universities, DEI is defined as carrying out policies or procedures “on the basis of” or “with reference to” race, color or ethnicity—and in some cases gender identity, sex or sexual orientation. The definition also includes promoting “as the official position” of the college any of a series of concepts associated with DEI.

    That certainly seems comprehensive—perhaps DEI is indeed illegal in Iowa. But both pieces of legislation explicitly do not apply to academic course instruction, research or creative works, student organizations, invited speakers, performers, or health services. You can drive a truck through these exceptions—a truck roughly the size of a college. These expansive exceptions are probably commanded by the First Amendment, which is one of the reasons why “illegal DEI” in Iowa ends up being pretty similar to “illegal DEI” in the Trump executive orders. It’s shaped like an admittedly very expansive reading of Title VI—with a little Title IX on the side.

    DEI and Religious Liberty

    Free speech is the First Amendment protection that comes to mind most naturally in higher education, but another one might become important for some colleges: the free exercise clause guaranteeing religious liberty. Some colleges state their commitment to diversity in unmistakably religious terms. One can imagine a practice rooted in religious belief that arguably violates the letter of Title VI—for example, distributing certain committee memberships in a representational way, perhaps by national origin. Or, for a college with long-standing missionary connections, scholarships directed to students from certain international religious communities.

    Practices like this could result in a direct collision of the free exercise clause of the First Amendment and the equal protection clause of the 14th Amendment. A very similar scenario was briefly discussed in a recent Supreme Court case, but the court did not resolve it. We may not know the answer unless it comes up. Because the free exercise clause protects not just beliefs but also actions—up to a point—certain practices related to diversity could conceivably have more constitutional protection if they are faith-based.

    So Why Are Some Universities Ditching DEI?

    Over all, it looks like getting into compliance with the law will require small but meaningful adjustments—and perhaps a lot of them. But this doesn’t explain why some universities are retreating from DEI altogether. I can think of four reasons why some are making this move. Three just reflect the reality of 2025, but the fourth may be an unforced error.

    First, state legislatures control public university funding, so even those that don’t pass anti-DEI laws can express their displeasure through the budget. When an institution like the University of Akron cancels race-oriented programs that are clearly protected under the First Amendment and the Jan. 21 executive order, the real reason may be the State Senate’s opposition to DEI.

    Second, research universities rely on big pipelines of grant money from agencies like the National Institutes of Health and the National Science Foundation. Those pipelines have been shown to be fragile, so when a private research university in a very blue state reduces its DEI program, as the University of Southern California appears to have done, it may be out of concern for research grants. Exactly how these funding streams relate to DEI has yet to be fleshed out, but it’s understandable if universities are connecting the two.

    Third, the executive branch may also use its hiring discretion to roll back DEI. In February, the interim U.S. attorney for the District of Columbia wrote in a letter to the dean of Georgetown Law School that his office would not hire anyone “who is a student or affiliated with a law school or university that continues to teach and utilize DEI.” There are potential legal problems with this, but it’s hard to see how universities can compel the federal government to hire their graduates. The retreat from DEI may be motivated in part by factors like this.

    A fourth explanation is that some university leaders are confusing political language with changes in the law. This is a critical mistake: We believe in rule of law, not rule by law. The law only changes when Congress changes it. The administration’s DEI executive orders did not purport to change the law; neither did the Office for Civil Rights or the Department of Justice. They are expressing sharp views on what the law is—and, in their view, what it has been since the Students for Fair Admissions case in 2023.

    From that perspective, everyone is playing with the same legal cards they had before Inauguration Day. What matters now is our collective commitment to play those cards according to the rules of the game. There’s a lot of change coming, and the courts are destined to be very busy.

    Dan Currell was a senior adviser in the Office for Civil Rights in the first Trump administration.

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  • Higher ed botched response to anti-DEI guidance (opinion)

    Higher ed botched response to anti-DEI guidance (opinion)

    While much of the now-infamous Valentine’s Day Dear Colleague letter from the Department of Education’s Office for Civil Rights was vague and void of specific information, the following sentence was crystal clear:

    “The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.”

    Despite the letter’s clear language to the contrary, higher education leaders and the media (including the higher ed press) did the math and declared Feb. 28 “deadline day” for diversity, equity and inclusion programs in higher education. “Deadline day,” read one story. “The clock is running out,” claimed another. An Associated Press story ran with the lead “Schools and colleges across the U.S. face a Friday deadline to end diversity programs or risk having their federal money pulled.” What ensued was a self-made crisis characterized by spirited debates and ill-advised anticipatory compliance with the yet-to-be-announced changes to enforcement of Title VI of the federal Civil Rights Act of 1964.

    Seasoned veterans knew better. The most likely “next step” indicated by the department was presumed to be further communication from OCR about the “measures to assess compliance” that were promised in the letter.

    And that is exactly what happened. On March 1, the department issued a press release and FAQ document elaborating on the Dear Colleague letter. The FAQ elaborates on the new administration’s intention to use a novel and expansive interpretation of the 2023 Supreme Court decision in SFFA v. Harvard, an admissions case in which Chief Justice John Roberts opined that diversity-related goals within higher education can be “commendable” and “plainly worthy.” It answers questions about how the department will receive complaints. In short, the department did exactly what it stated it would do within the 14-day timeline. The so-called deadline was a chimera, an artifact of the confusion and fear created by the letter’s politically charged context and lack of specificity.

    While it leaves many key questions unanswered, the FAQ does favorably settle several unclear points raised by the Dear Colleague letter.

    Question 8 asks, “Are Diversity, Equity and Inclusion (DEI) programs unlawful under SFFA?” The answer is no. Only if those programs discriminate on the basis of race, color or national origin do they violate the law. The answer further clarifies what we have known all along: “Whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’” The department declares in unambiguous language that it cannot deem certain words “illegal,” nor are phrases such as “diversity,” “equity,” “inclusion” or “belonging” a violation of nondiscrimination obligations.

    Question 9 asks, “Does this mean that students, teachers, and school employees may not discuss topics related to race or DEI under Title VI?” Again, the answer is no. Only if those classroom discussions create “hostile environments through race-based policies and stereotypes” do they violate the law. The answer makes clear, “Nothing in Title VI, its implementing regulations, or the Dear Colleague Letter requires or authorizes a school to restrict any rights otherwise protected by the First Amendment.”

    The 14-day window between the Dear Colleague letter and the FAQ did not pass without some productive and inspirational advocacy. Notably, Paulette Granberry Russell and the National Association of Diversity Officers in Higher Education won a significant legal victory in federal district court, achieving a preliminary injunction blocking enforcement activities and the withdrawal of funding based on anti-DEI executive orders.

    The American Council on Education submitted a persuasive letter to OCR—signed by 71 national higher education organizations—requesting that the Dear Colleague letter be rescinded and that the department engage with the higher education community to ensure a clear understanding of the legal obligations of colleges and universities—a rare example of higher education speaking with one voice on this topic.

    The rest of the frenetic activity in this two-week time span was less productive. Despite many thoughtful suggestions to the contrary, some colleges and universities hastily undertook “audits” and website “scrubbing” of programming they thought might possibly be covered in the OCR’s forthcoming communications. A careful review of the FAQ document is likely to reveal that much of this was an unnecessary overreaction.

    From my perspective, the most harmful occurrence was an unproductive debate over institutional responses to the letter. Most of these took the shape of a false dichotomy between courage and cowardice. In my estimation, the institutions that stayed the course and waited for guidance from OCR were not courageous, but rather prudent. Conversely, the institutions that moved to action were not universally motivated by fear or cowardice, but rather by institution-specific realities of board governance, state and local politics, and individual risk assessments. At the end of the day, it was context and not courage or cowardice that motivated institutions.

    With a published methodology for compliance assessment now communicated, the department has answered a few of the lingering questions outlined on Valentine’s Day. Most notably, the FAQ provides a clear statement on how the Dear Colleague letter will be enforced.

    The answer to Question 14 clarifies that the department will use existing case-processing procedure—which includes due process for institutions and the possibility of a voluntary resolution agreement—and links to a newly revised Case Processing Manual. It is now the job of institutions that are committed to building “inclusive and diverse campus communities”—as the ACE letter penned by Ted Mitchell so eloquently states—to prepare a spirited defense of their programming by demonstrating that their efforts do not violate federal civil rights law.

    Steve Robinson is president of Lansing Community College.

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  • Colleges scramble to meet federal anti-DEI deadline

    Colleges scramble to meet federal anti-DEI deadline

    The clock is running out on colleges as they mull how to respond to a sweeping federal order to end all race-based policies and programs.

    In the face of an imminent Friday night deadline, college leaders are scrambling to determine how to navigate the Feb. 14 Dear Colleague letter issued by the Education Department’s Office for Civil Rights, which declares all race-based educational programs and policies discriminatory and illegal. When they sent the letter on Valentine’s Day, department officials gave institutions two weeks to comply or face investigations and, possibly, the loss of federal funding.

    For many colleges, the challenge is figuring out how to avoid drawing unwanted government attention without abandoning key services for underrepresented students and staff.

    Institutions aren’t going to lose federal funding overnight. The investigative process is notoriously lengthy, and the Education Department has never revoked a college’s federal funding over civil rights concerns. The OCR may also be rendered impotent, at least temporarily, if a judge decides to halt enforcement while considering a lawsuit filed Tuesday challenging the letter.

    But college leaders are anxious about the threat of federal funding cuts, which would be catastrophic for the majority of postsecondary institutions. Ray Li, who previously worked as an attorney at the Office for Civil Rights, said he expects the office to launch investigations shortly and that many colleges will buckle under the pressure, shedding practices that fostered campus diversity and belonging.

    For now, colleges seem to be taking a slow and cautious approach, removing language about race and DEI buzzwords from the names of programs and launching internal policy reviews.

    University of Nebraska president Jeffrey P. Gold said system campuses are in the midst of a comprehensive review of programs and policies, but no changes have been made yet. The Nebraska Board of Regents discussed possible tweaks to its bylaws at a recent board meeting, like removing references to “cultural diversity” and revising language on equal opportunity in employment, but no final decisions were made.

    Gold said that as the review process continues, he doesn’t expect to “turn up anything that looks or feels like discrimination,” as the letter describes.

    But it’s possible “we will turn up some things that require some language changes or possibly some changes in titles, changes in offices … that could be misinterpreted by the Department of Education just because of [the] use of specific terminology.”

    He added that Nebraska banned affirmative action in 2008 and the state’s second attempt at an anti-DEI bill is pending in the Legislature, so “we have been changing websites [and] titles for years—that’s why I believe that there’s nothing substantive that we really have to change at this time.”

    The University of Montana undertook a similar compliance review that tasked senior administrators with assessing whether their departments had any policies or practices at odds with the Dear Colleague letter.

    “We made the decision to be as thorough as possible,” said Dave Kuntz, the university’s director of strategic communications. The review, however, led to “very minimal changes and really no changes at a programmatic or operational level.”

    University leaders over all concluded that the institution was already in compliance, though some programs, like the Women’s Leadership Initiative, chose to tweak their webpages to clarify that they don’t bar anyone who wants to participate.

    A spokesperson for the Education Department did not respond to multiple questions from Inside Higher Ed in time for publication.

    A Thorough Scrubbing

    Many institutions are responding by scrubbing their websites of words like “diversity” and “inclusion.” The University of Cincinnati, Carnegie Mellon University, the University of Pittsburgh, the University of Alaska system and many more all did so after the Dear Colleague letter; some colleges had already begun revising their digital presence in response to Trump’s executive order on DEI in January.

    The University of Colorado removed all references to a former DEI office and replaced them with a website for a new “Office of Collaboration.” The University of Pennsylvania scrubbed the websites for all 16 undergraduate and graduate schools of DEI keywords and removed references to diversity and affirmative action from its nondiscrimination policies.

    Shaun Harper, a professor of education, business and public policy at the University of Southern California, said he’s been disappointed that higher ed leaders are heavily revising their institutions’ online presences in the hopes that it will appease the OCR—a project he believes will prove futile. In the Dear Colleague letter, acting assistant secretary for civil rights Craig Trainor specifically warned against using “proxies for race” and promised to investigate race-neutral programs that “discriminate in less direct, but equally insidious, ways.”

    “Scrubbing websites, launching reviews—these are the easy things to do while colleges are in ‘wait and see’ mode, to find out if that will take the target off their backs,” said Harper, an Inside Higher Ed contributor who authored a blog post last week recommending ways colleges can fight back against the Dear Colleague letter. “I think it’s both weak and reckless.”

    Some institutions have gone one step further. Colorado State University issued a statement in which leaders simultaneously maintained that its policies are already race-neutral and promised to do more to comply with the new federal directives.

    “The new administration’s interpretation of law marks a change,” the statement reads. “Given the university’s reliance on federal funding, it is necessary to take additional steps.”

    And one day before the deadline, Ohio State University president Ted Carter announced the institution would shutter two DEI offices and eliminate more than a dozen staff positions, some of the most dramatic measures a college has taken during the new Trump administration.

    In a particularly telling move, OSU’s Office of Institutional Equity will be renamed the Office of Civil Rights Compliance to “more accurately reflect its work,” according to an email sent to students Thursday.

    ‘We’ve Seen This Film Before’

    For a glimpse of how anti-DEI compliance battles might play out between institutions and policymakers, consider the red states that have passed laws mandating similar cuts to race-conscious programs.

    In Texas and Florida, public colleges reacted to impending or newly signed anti-DEI laws by changing the names of university offices and campus resources, moving personnel to student support services, and removing DEI mentions from university materials and websites. But in both cases, lawmakers came down hard to ensure the institutions took more strident action, leading to significant layoffs, spending cuts and policy changes.

    “We’ve seen the prequel to this film before in Texas,” Harper said. “When that Senate bill was looming, many institutions thought they were very smartly getting ahead of it by just renaming things. That proved to be a failed strategy, and I very comfortably predict that some version of that will also happen nationally.”

    In some states, the “review and revamp” strategy for avoiding DEI crackdowns appeared to work for a while. The University of Arkansas eliminated its DEI office in June 2023 in part to pre-empt a bill that state lawmakers were considering to force spending cuts. And last year, the University of North Carolina system Board of Trustees passed an anti-DEI resolution just as legislation was gaining steam to mandate enforcement from the state; that legislation was never brought to a full vote.

    But circumstances have changed as the Trump administration launches direct attacks on DEI. Arkansas governor Sarah Huckabee Sanders signed a law earlier this month that will “prohibit affirmative action and preferential treatment in state-supported institutions,” including public colleges like the University of Arkansas. Even in Texas, where public universities underwent broad layoffs and spending cuts in response to state legislation, lawmakers have threatened to cut $400 million in higher ed funding unless colleges do more to comply.

    “If they don’t kick DEI out of their schools, they’re going to get a lot less,” Texas lieutenant governor Dan Patrick said at a policy forum last week.

    What Happens Next?

    Legal experts say it’s unclear what will happen after the OCR’s deadline passes. The Dear Colleague letter promised more detailed guidance, but none has materialized.

    “We’re kind of all in agreement that [the letter] is really confusing and overbroad, and the timeline is really outrageous,” said Andrea Stagg, director of consulting services at Grand River Solutions, a company that works with colleges on legal compliance issues. She noted that many underresourced colleges don’t have in-house legal teams to assess their risk by the deadline.

    “What actually happens after tomorrow? How fast will it be?” she said Thursday. “I don’t know.”

    Typically, the Office for Civil Rights opens investigations based on complaints from students, families or legal advocates, but it can also launch its own direct investigations. Most cases end with a voluntary resolution, in which the institution agrees to make certain changes. But unresolved cases can be referred to the U.S. Department of Justice for litigation.

    Li believes the OCR will likely receive complaints from anti-DEI groups as well as open some direct investigations into higher ed institutions with race-based scholarships, affinity group graduation ceremonies or other practices called out by the letter, starting next week. (He pointed out that the current OCR has already launched some direct investigations into universities related to Title IX.)

    But that doesn’t mean the day after the Dear Colleague deadline “schools are just going to lose all their federal funding”—assuming normal procedures are followed, he said. Such investigations can take months, even years.

    An investigation reaching the point of litigation is also “an incredibly rare step that, under most administrations, pretty much never happens,” Li said. And the Department of Education taking away federal funding over an OCR investigation would be completely unprecedented.

    “But, also, rare things are happening right now,” Li conceded.

    Stagg said it’s hard to tell to what extent normal processes will be followed, or how much the Department of Government Efficiency’s reductions to the federal workforce could affect investigations.

    “There is a real question as to who will do these investigations” and how the OCR will choose institutions to focus on, she said. “Is there going to be an AI tool to search [college] websites for certain terms, the way we saw with the flagging of grants? It could be that the president has a bad interaction at a meeting with a leader and then they are targeted for investigation.”

    An Education Department spokesperson did not respond to questions about planned investigations, agency capacity and enforcement mechanisms in time for publication.

    It’s also unclear how much resistance colleges will put up. Li believes there’s a strong case to be made that some of the practices targeted in the Dear Colleague letter are perfectly legal. Higher ed institutions under investigation could refuse to make changes and go head to head with the Department of Justice. But they’d be signing up for an onerous, likely expensive process that puts their funding in jeopardy.

    “The question is, is anyone willing to litigate it?” Li said.

    Even if the Dear Colleague letter is rescinded, Li said the Office for Civil Rights has clearly signaled its plans for the next four years, and he believes higher ed institutions will continue working to rid themselves of anything that could attract scrutiny.

    “I think there’s going to be an overcorrection,” he said. “It is going to lead to some perfectly legal programs that support fostering racially inclusive communities on campus being taken away.”

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  • A West Virginia HBCU reviews programs after anti-DEI order

    A West Virginia HBCU reviews programs after anti-DEI order

    West Virginia State University has been tasked with reviewing its programs and practices after the state’s governor issued an executive order against diversity, equity and inclusion. While other public institutions in the state have to do the same, West Virginia State University is in a somewhat unique position: It’s a public, historically Black institution with a predominantly white student body. The university serves all, but diversity and inclusion are part of its founding mission.

    Higher ed experts say that while few public HBCUs are openly discussing the issue, West Virginia State isn’t the only such institution that’s undergoing this kind of review process as DEI bans proliferate. Some argue that subjecting HBCUs to these reviews is counterintuitive in light of their historic mission, raising questions about how such institutions will fare in the current state and federal policy landscape.

    West Virginia State launched its review after Governor Patrick Morrisey last month banned state institutions from using “state funds, property, or resources” to “grant or support DEI staff positions, procedures or programs.” He also prohibited mandating DEI statements or any training or programming that “promotes or encourages the granting of preferences based on one person’s particular race, color, sex, ethnicity, or national origin.” The Foundation for Individual Rights and Expression, an advocacy organization for free speech rights, castigated the executive order as overly broad and warned it could limit what’s taught in West Virginia classrooms.

    The executive order also required “all cabinet secretaries and department heads under the authority of the Governor” to complete a report within 30 days, identifying any positions, procedures or programs based in “theories of DEI.”

    In response, West Virginia State University, along with other public universities in the state, submitted a letter outlining diversity-related positions, programs and activities, said Ericke Cage, the university’s president.

    “If there are concerns raised by the governor’s office … then we need to work to negotiate possible resolutions,” Cage said, though he expects it won’t come to that.

    In the letter, the university’s general counsel, Alice R. Faucett, argued that a comprehensive review found no evidence the university engages in or supports “preferential treatment” based on DEI principles.

    At the same time, the response readily acknowledged the university’s history and mission as an HBCU.

    “All procedural practices and programs at WVSU are designed to foster an inclusive and equitable environment,” Faucett wrote. They also “promote fairness and equal access while ensuring no group receives preferential treatment. The University remains dedicated to serving all members of the community, particularly those who have been historically marginalized, as part of its longstanding mission.”

    The letter highlighted some practices and policies that reflect the university’s “commitment to diversity, inclusion and compliance with state directives.” They included annual Title IX trainings, services for sexual assault survivors, campus presentations on human rights law and email messages recognizing Black History Month, Martin Luther King Jr. Day, Women’s History Month and other observances.

    Faucett’s response also noted that the university receives some federal grants and privately funded scholarships with “DEI components,” without offering further detail.

    Felecia Commodore, an associate professor of higher education at the University of Illinois at Urbana-Champaign, said other public universities have taken a similar approach to DEI bans, arguing to state lawmakers that “there’s nothing to reorganize, because we’re not doing what you’re saying.”

    ‘Baked Into Who We Are’

    Though such DEI reviews might seem fraught for an HBCU, Cage believes the university is likely to come out unscathed—and it may even fare better under the governor’s scrutiny than its non-HBCU counterparts. He noted that West Virginia State doesn’t have a DEI office or specific DEI personnel, a detail also highlighted in the university’s response document.

    “When it comes to diversity and inclusiveness, that’s really baked into who we are as an institution as part of our DNA,” Cage said. “At our very core, we are all about being a highly inclusive institution where any student, regardless of their background, can come and get a good-quality education.”

    He also emphasized that WVSU’s student population is majority white. University data from fall 2024 shows white students made up about 72 percent of the roughly 3,200 enrollees, while Black students composed about 10 percent, making it hard to argue the HBCU favors one racial group over another. Nationwide, non-Black students made up 24 percent of enrollment at HBCUs in 2020, compared to 15 percent in 1976, a trend that’s sparked discussion within some of these institutions about how to preserve HBCUs’ legacy while attracting and serving an increasingly broad range of students.

    Commodore pointed out that, in fact, “HBCUs were some of the only institutions that never had race-based admissions.” HBCUs were founded after the abolition of slavery to educate Black Americans at a time when such students weren’t welcome at other higher education institutions.

    For a while, non-Black students “chose not to go to them, but [HBCUs] have been inclusive since their inception,” she said. “If the aim of these reviews of DEI is to ensure that institutions are not discriminating because of race or gender or sex, to ensure that people are not being prioritized or excluded … actually, HBCUs were the model for that.”

    Given that history, Cage theorized HBCUs may not be heavily affected by DEI bans for the same reasons he’s hopeful for his own institution: Diversity and inclusion are intrinsic to how these institutions operate, not housed in a particular office or center. At the same time, they serve all students. Non-HBCUs, on the other hand, have made changes over the years, building up supports and services for students of color, which are now at risk.

    For “predominantly white institutions [that] have not traditionally or historically had that focus on inclusivity, I think it will be a challenge,” Cage said. “It is important for institutions to be welcoming, to provide support systems for diverse students,” and DEI programs were intended to make sure students from underrepresented backgrounds “felt that they were part of the university community.”

    Some non-HBCUs in the state are scrambling to make changes to comply with the executive order. The state flagship, West Virginia University, just a few hours away from WVSU, reported in late January that it would shut down its Division of Diversity, Equity and Inclusion in response to the executive order, a move the governor celebrated as a “win.”

    “This is just the beginning of our effort to root out DEI,” Morrisey said in a video announcement about the division’s demise. “That’s going to happen more and more in the weeks and months ahead.”

    Concerns Remain

    Shaun Harper, University Professor and Provost Professor of Education, Business and Public Policy at the University of Southern California and an opinion contributor to Inside Higher Ed, said it’s become “incredibly pervasive” for public HBCUs to have to conduct reviews of their DEI work as state-level DEI bans spread—even if many HBCU leaders aren’t discussing the issue publicly.

    And such reviews are extra burdensome for HBCUs, he argued.

    “If a predominantly white institution gets that same request, it’s likely a lot easier for them to list their culture centers, their Office of Multicultural Affairs, perhaps the office of the chief diversity officer,” said Harper, who also serves as USC’s Clifford and Betty Allen Chair in Urban Leadership. For HBCUs, it’s “impossible, in fact, to catalog everything that would otherwise qualify in any other context as DEI” because most have majority-Black student populations and gear their programming and services toward their student bodies.

    “It’s really onerous for presidents and their cabinet members and others on their campuses to even attempt to complete this exercise,” Harper added. “It requires enormous sums of their time.”

    Harper doesn’t believe state lawmakers are gunning for HBCUs with anti-DEI bans; it’s more likely they thought very little about how hard it would be for them to list their diversity efforts, he said. Nonetheless, the bans make some public HBCU leaders fear for their state funding if they don’t comply, or if their DEI reviews fail to appease state lawmakers when many don’t have funding to spare.

    Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education, said part of the challenge with many DEI bans is their “vagueness” and the “chaos” that can create for higher ed institutions.

    The wording of some laws and executive orders calls into question, what can an HBCU do “to acknowledge, teach, celebrate, promote, its roots?” she said. “Is celebrating a national holiday”—like Martin Luther King Jr. Day—“is that acceptable?”

    Cage said he hasn’t ruled out that some of WVSU’s programs could be at risk—including federal grants with DEI components or privately funded scholarships for students from certain racial backgrounds or geographic areas—as a result either of the governor’s executive order or President Donald Trump’s efforts to root out federal funding for DEI.

    “If those privately funded scholarships are put in jeopardy, or if federal grants are eliminated, there will be a direct impact on our ability to support our students or to advance research and innovation on our campus,” he said. “Our students come to us with a thirst for knowledge, but they also come to us with not a lot of financial resources. I can’t tell you where we would come up with the resources to fill that gap.”

    While the university is reviewing its academic programs as well, Cage said any changes to curricula or academic programming would fly in the face of the university’s accreditation standards, which require a commitment to academic freedom.

    “When it comes to academic freedom and integrity, those are things that we really need to hold the line on,” he said.

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