I have been surprised to learn that many colleges and universities are not issuing direct guidance to their faculty concerning compliance with President Trump’s executive orders about DEI and the US Department of Education guidance about DEI.
This column is not legal advice and does not substitute from you following directives of your institution. But it contains the views of an experienced education and employment lawyer who has been paying attention. I had been representing faculty for over 30 years at a large law firm and then my own firm.
The first point is that the law is in flux, and the President is creating chaos. In the film “Bananas”, the (now cancelled) Woody Allen created a character who was a dictator of a country who ordered all citizens to immediately change their underwear many times a day and to wear the underwear outside their pants for easy checking. The current set of orders from the President and Assistant Secretary of Education does not feel quite as crazy as that— but they are pretty crazy. This is especially true in light of the recent mass terminations of DEI professionals and others who work for the government from Elon Musk, a private citizen who happens to be a new (temporary?) friend of the President, and labeled the head of a new agency, DOGE. DOGE is a body that Congress has not authorized nor appropriated funds for. Nor has Mr. Musk withstood Senate hearings and confirmation.
It is not that the President lacks the right to issue policy changes interpreting the law — consistent with existing case law. It is not that he lacks the right to follow through on his campaign promises that are lawful. It is rather, the intense speed of the orders and directives and the demand for IMMEDIATE wholesale change in the way colleges and universities and professors who receive federal grant dollars do business is destructive and chaotic. The President’s orders about DEI and the Assistant Secretary of Education’s guidance interpreting Title VI and VII contain both legal and illegal directives, when we look at the current state of the case law interpreting those laws.
A federal judge in Maryland, Hon. Adam Abelson, issued an injunction February 21, 2025, stopping most of the President’s DEI orders concerning government contractors, including universities. He wrote a very careful and long opinion that will be taken quite seriously by higher courts, including the Supreme Court. The particular points he makes are the ones I just made plus a much more important point that I have alluded to in a prior blog. He states the orders extend into the realm of prohibiting conduct that is lawful speech. And he clearly calls the President out for issuing orders to punish the speech of DEI professionals by getting them fired.
The First Amendment protects people from losing government funding because they say things that offend the President. There is a national discussion and debate about the way to eliminate racism — race conscious approaches versus race neutral approaches. The President has taken actions to eliminate the jobs of those whose job has been to advance the race conscious approach to eliminating racism. Punishing people for their speech feels intuitively wrong. Punishing people who provide support services to minority students also feels quite wrong— how is that possibly unlawful?
On the other hand, if we are very careful and honest, we will acknowledge that the discrimination laws seem to narrow the scope of First Amendment protected speech. One may have a right not to go to jail for calling someone the “N” word, but one can certainly be fired for that conduct. The First Amendment does not protect the speaker of discriminatory speech from losing a contract or getting fired. The attack on “woke” has been that many people’s careers have been damaged or destroyed by advocating positions that some people find offensive and labeled as sexist or racist when the same conduct was deemed professionally appropriate a decade earlier. The President ran for office attacking DEI as violating the First Amendment and as being racist against whites and sexist against men.
The President has now labeled race conscious approaches to eliminating racism as RACIST. Can he do that? In light of the 2023 US Supreme Court affirmative action decision at Harvard College, he argues that he can. That opinion did not examine Title VI and Title VII, federal laws that prohibit racism in education and employment. It analyzed the Fourteenth Amendment and applied it to ban race conscious approaches to college admissions. But the logic of that opinion appears to extend to other areas in education and employment law and the interpretation of the statutes cited above. Judge Abelson disagrees and claims the speech of advocating for race conscious approaches must be protected and certainly some of that speech is not racist— even if the President does have the right to eliminate some parts of DEI.
None of us likes speech with which we strongly disagree, and it is a natural human desire to have the Government punish speech we think of as bad. But protecting speech is actually a conservative value— it protects citizens from the shifting political winds. The Founders knew their English history, and they created the First Amendment because they recognized that sometimes the King is Protestant and those advocating Catholicism should not be punished for their beliefs and speech, and sometimes the King is Catholic, and those advocating for Protestantism should not be punished for their beliefs and speech. Universities have been funding research giving priority to that which aids in our understanding of minority populations or women. In part, this is because historically research was performed on white men and results were presumed — sometimes incorrectly with terrible results —to apply to women and other racial groups. Medical and psychological and sociological data have demonstrated we need to know more about the differences between us. That is not simply to benefit particular groups— it is so we can provide competent and accurate medical care. Nonetheless – all research aimed towards women and minorities is suddenly forbidden. Projects that scientists have vetted are suddenly being stopped.
Imagine after four years of DEI being unlawful, a new Democratic President issued an order that in 14 days all colleges must immediately institute DEI in hiring choices and providing support services to students and explain DEI benefits to justify obtaining grant dollars. Such a rule would be equally chaotic and unreasonable.
Whatever citizens or the leaders of institutions believe about the goodness of a policy choice, they should be given a reasonable chance to comply with the new order in a reasonable way. That has not occurred here.
The essence of law is to be reasonable. The current lack of clarity in many of the executive orders and the immediacy of the effect of the new orders with intensely harsh results for noncompliance — threats to lose all federal funds – is frankly unreasonable. That is precisely what Judge Abelson found and why he issued his order.
The assistant secretary of education wrote a 14-day order that called for the wholesale elimination of much of what modern colleges and universities do — make their students feel comfortable by acknowledging their differences. Judge Abelson’s order does not seem to apply to this “guidance.” (Although there is a legal argument that it does) The order also appears to bar research that applies to minority groups. I expect legal challenges to be at least partially successful. Fourteen days to comply is patently ridiculous, as are many of the new directives.
I expect a variety of institutional responses to the new Education Department guidance.
Question: If you are a professor, what do you do?
Answer: Ask the general counsel of your institution for guidance and do what they say.
Question: How do I expect all of this will shake out?
Answer: Much of race conscious approaches to preferential hiring or admissions will be stricken down by the courts as unlawful under Title VI and Title VII, just as the President wants. Other acknowledgments of race and gender for support services for students, and for research will be found lawful, and I predict the Supreme Court will not allow the current assault on universities to continue unabated.
The courts will protect universities from losing funds for engaging in good faith but incomplete compliance. But universities that go to war on the new rules and don’t comply at all will risk a true cutoff of funds. I would expect this President to make an example of some colleges.
My predictions will evolve as we get new court opinions interpreting the new orders in light of statutes and the Constitution.