Tag: Reality

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:

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.