Or subscribe now to read with unlimited access for as low as $10/month.
A free account provides you access to a limited number of free articles each month, plus newsletters, job postings, salary data, and exclusive store discounts.
Trump’s January 21 executive order directs federal agencies to “combat illegal private sector DEI preferences, mandates, policies, programs, and activities” without defining DEI or saying what makes it illegal. Similarly, a February 14 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights complains of unspecified “DEI programs,” which it claims “frequently preference [sic] certain racial groups and teach students that certain groups bear unique moral burdens.”
These missives are part of an onslaught of attacks on “DEI” (diversity, equity, and inclusion), a term so broad that it might include not only recent efforts to address systemic racism and sexism adopted in the wake of the #MeToo and Black Lives Matter protests but also decades-old programs such as ethnic- and culture-themed houses, Black graduation ceremonies, and women’s-studies programs. At its worst, the anti-DEI agenda demands a return to the discriminatory practices of the past: faculty hiring through exclusionary networks, admissions policies guaranteed to produce homogeneity, and acquiescence in campus environments hostile to women and underrepresented minority groups.
At its worst, the anti-DEI agenda demands a return to the discriminatory practices of the past.
It’s unclear precisely what’s in the crosshairs because, like that tipsy uncle, the Trump administration’s directives are vague and confused. The Dear Colleague letter is laughably sloppy for an official communication: It includes a footnote with no corresponding citation and several dubious legal assertions, suggesting a lack of care, a lack of competence, or perhaps simply the contempt for professionalism that has been a hallmark of this administration. It collapses legally unrelated complaints about admissions, curriculum, and student organizations, some of which might involve unlawful practices and many of which clearly do not. For instance, it claims (without evidence or example) that “educational institutions … have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.” These are distinct issues that don’t belong in a single sentence. “Discriminatory practices” are unlawful (and the Education Department must give specific examples of any such legal violations), but “indoctrination” is just a derogatory name for instruction — a form of expression protected under the First Amendment.
The Education Department followed up a few days later with a sobered-up Frequently Asked Questions memo. It was a professional and measured document advancing defensible conservative interpretations of the law. Most importantly, it acknowledged the formal legal process for enforcement of civil-rights laws, which requires that the Education Department attempt to secure voluntary compliance before initiating proceedings which might end in withdrawal of funding.
Sadly, the administration fell off the wagon on March 7 when, without seeking voluntary compliance or even beginning the required procedures, it announced the cancellation of $400 million of grants and contracts awarded to Columbia University. The purported justification was the university’s failure to prevent antisemitic hostility on campus — a real problem on many campuses but also a charge that right-wing activists have weaponized to put colleges in a no-win position.
Student activism surrounding the conflict in Gaza has challenged colleges like nothing else in recent memory. Campus activism in the past, with the possible exception of anti-Vietnam War protests, has not pitted students against each other as these recent protests have. Old habits for managing student activism are now inadequate; colleges have stumbled in their efforts to meet new challenges.
This has given the Trump administration an excuse to mount a sweeping attack on higher education under the cloak of civil-rights enforcement. Colleges are legally obligated to prevent a racially hostile environment from affecting student life. This is the ostensible basis of the actions against Columbia, Harvard, and other institutions. At the same time, the government may not restrict speech based on its content nor may it require a college to do so. Balancing antiharassment laws and freedom of expression demand a subtle and context-specific assessment. For speech to qualify as discriminatory harassment, it must be so severe and pervasive that it affects educational opportunity. Isolated incidents, even if alarming, are not enough to meet this standard, nor are ongoing inconveniences or speech that is merely offensive.
It’s possible that some colleges failed to meet their legal obligations by allowing aggressive demonstrators to target students based on their race or religion. But free-speech principles — a longstanding commitment for private colleges and a legal obligation for public ones — demand that colleges allow peaceful demonstrations, even for controversial and potentially offensive positions. And every college administrator knows that strict enforcement of rules, such as those prohibiting overnight encampments, can escalate a conflict as easily as end it. Indeed, some colleges now face lawsuits from students on opposing sides of the same events — Muslim students and pro-Palestinian protesters, as well as Jewish students and pro-Israel activists — each claiming the college unfairly favored the other side. Civil-rights laws require colleges to take reasonable steps to prevent harassment, but they do not demand that colleges purge dissent, eliminate political conflict, or send in the riot police to break up peaceful assemblies.
Among other demands, the Trump administration called for Columbia to place its Middle Eastern, South Asian, and African-studies department under “academic receivership” — a demand that strikes at the heart of academic freedom and the First Amendment. As lawyers across the political spectrum agree, the government cannot make giving up a constitutional right a condition of funding. Moreover, civil-rights laws do not permit the executive branch to run an extortion racket by withholding funding approved by Congress and then dictating terms for its return. Quite the opposite: Civil-rights laws require a careful, program-specific assessment to identify any violations, after which the Department of Education must give notice of its concerns and try to secure voluntary compliance. Only if such efforts fail may the department begin enforcement proceedings, which require it to submit a report to Congress 30 days before withholding funding. Even then, funds may only be withheld from the specific programs that violated the law. For example, the government can’t withhold grants from a medical school because of violations in the history department, much less, as in the case of Columbia, suspend a host of unrelated grants and contracts because of vaguely defined violations.
Title VI of the Civil Rights Act of 1964 prohibits colleges that receive federal funding from excluding or denying benefits to anyone because of race, color, or national origin. Similarly, Title IX of the Education Amendments Act of 1972 forbids exclusion because of sex. For decades this has meant, first and foremost, that colleges must reform practices that have kept underrepresented groups from matriculating and thriving on campuses that had long excluded them.
Until the Supreme Court’s decision in Regents of the University of California v. Bakke, in 1978, it was unclear whether civil-rights laws prohibited affirmative action or required it. Executive orders issued by Presidents Johnson and Nixon required government contractors to take “affirmative action” to ensure they did not perpetuate racial biases prevalent elsewhere in the labor market, such as racial exclusion in labor unions or apprenticing systems. These orders were kept in place by both Republican and Democratic administrations until Trump repealed them in January.
In higher education, affirmative action was designed to counteract the discriminatory effects of other admissions criteria. In particular, standardized testing had been found to violate civil-rights laws in the employment context if it screened out disproportionately large numbers of minority applicants and wasn’t job related. Employers had to show that such testing predicted performance or measured job-related skills. Arguably, the implications of the disparate-impact theory required colleges to either abandon selection criteria with an adverse racial impact or justify them as necessary to the academic mission. But because colleges valued potential as well as current performance and unquantifiable civic and cultural virtues alongside objectively measurable merit, it’s not clear whether high-school grades and standardized testing are sufficiently related to legitimate academic goals to justify their racial impact. The relationship of other admissions criteria such as regional diversity, athletic talent, and legacy status to the college’s mission are even more difficult to define. Affirmative action allowed everyone involved to sidestep these difficult questions by blunting the racial impact of traditional admission criteria after the fact.
In short, it’s long been an open secret that affirmative action effectively compensates for exclusionary admissions criteria. In fact, until recently, opponents of affirmative action insisted that eliminating or relaxing such criteria was a legally preferable race-neutral alternative to affirmative action. For instance, in the 2003 case Grutter v. Bollinger, Justice Clarence Thomas complained that the University of Michigan Law School “maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.” Practically speaking, Title VI enforcement reflected a tacit bargain: Colleges didn’t need to justify their admissions criteria if they made up for the racial impact with affirmative action.
The Trump anti-DEI orders create a fog of uncertainty designed to intimidate college administrators into dropping lawful programs and censoring constitutionally protected speech.
Similarly, Title IX not only allowed colleges to consider sex, it required them to do so in the context of athletics, as long as they continued to field teams for sports like football and basketball, where men’s physical size was an insurmountable advantage. No one seriously considered challenging sex segregation in sports or imagined that sex-blind recruitment would be a sensible way of offering equal opportunity. It seemed to follow that considering sex to counteract underrepresentation in other areas, such as STEM, were also consistent with Title IX’s equal-opportunity mandate.
In short, equal-opportunity laws required colleges to consider both race and sex when doing so was necessary to identify and counteract discrimination: race, to measure the disparate impact of exclusionary admissions criteria; sex, to provide opportunities for women in institutions designed for men.
Before the recent Trump offensive against DEI, most conservatives and liberals seemed to accept the goal of inclusion but disagreed on the means. Conservatives insisted that equal-opportunity programs must not disadvantage people who were not directly responsible for past discrimination. Hence they opposed affirmative-action preferences on the ground that they necessarily disadvantaged innocent white (and later, Asian) applicants; they opposed strict parity between men’s and women’s sports on the ground that men’s sports were more popular with spectators, justifying larger budgets; and they claimed Obama-era Title IX sex-harassment rules unfairly prioritized the injuries of (female) victims over the rights of the (men) accused. Liberals defended more aggressive civil-rights enforcement: Affirmative action, they argued, merely leveled a playing field that had been tilted to favor white applicants; Title IX in sports corrected generations of sex-based exclusion and unexamined assumptions of masculine athletic superiority; Title IX rules around sex harassment protected female accusers from tragically widespread intimidation, victim-blaming, and slut-shaming.
Trump’s attacks on DEI go further than earlier conservative efforts to limit civil-rights enforcement; indeed, they attempt to turn antidiscrimination law against itself. For instance, adopting a radically broad reading of the Supreme Court opinion in Students for Fair Admissions v. Harvard , the recent Dear Colleague letter insists that “it would … be unlawful for an educational institution to eliminate standardized testing to … increase racial diversity.” This is the opposite of what long-established law holds: Title VI of the Civil Rights Act of 1964 — the same provision that applies the constitutionally grounded affirmative-action analysis to private colleges — also requires colleges to avoid practices with a disparate racial impact.
Any enforcement action must involve a sensible interpretation of existing law. The Supreme Court’s recent affirmative-action jurisprudence is much more limited in scope than many imagine. Students for Fair Admissions did not overrule the court’s earlier decisions, which allowed colleges to consider race as part of holistic assessment of applicants, nor did it repudiate diversity as a general matter. To the contrary, the court in SFFA opined that diversity was a laudable goal (but insufficiently measurable to justify racial preference in admissions) and specifically held that colleges could consider the race of applicants when it was relevant to their individual experiences. Given this, many of the Trump administration’s demands will not survive legal challenge. For instance, a blanket purge of the goal of diversity — to say nothing of an order banning use of the term — not only violates the First Amendment but also bears no relationship to any legitimate law-enforcement goal.
The power-drunk Dear Colleague letter wrongly insisted that SFFA “applies” outside the admissions context. The more sober FAQ sensibly suggested that it might have implications outside that context. The most obvious implication is that college programs that formally limit participation to members of specific races may violate Title VI. But such programs are few and far between. For instance, ethnic-themed houses that are open to all students, even if their residents are disproportionately members of one race, are unambiguously lawful, just as fraternities and sororities with predominantly white memberships are.
Recruitment programs that focus on historically overlooked schools or neighborhoods are also in the clear. A graduate or professional school that has neglected to recruit from historically Black colleges may remedy the oversight, even if it does so in response to recent restrictions on affirmative action. Again, such a change is precisely what conservative opponents of affirmative action have long suggested is an appropriate race-neutral alternative means of achieving diversity.
Of course, colleges must review their current practices to ensure they comply with current law. It’s understandable that some will take the opportunity to reform or drop overbroad or misguided DEI policies. DEI programs that required cumbersome but ineffective sensitivity training or added significantly to already-bloated university bureaucracies deserve a critical eye. For example, the University of Michigan has announced that it will unwind its DEI programs in response to a Department of Education demand, but long before the Trump administration’s campaign on higher ed, many complained that its DEI efforts had badly overreached.
But colleges should reform DEI only after careful and transparent review — not as part of a panicked effort to capitulate to an executive branch bent on undermining higher education. Indeed, the best DEI programs try to ensure campuses are welcoming to students of all backgrounds and develop tools to mediate conflicts. Ironically, thoughtful DEI programs may be the best hope for tackling antisemitism and fixing hostile campus environments while preserving freedom of expression.
If colleges choose to change lawful programs to avoid antagonizing a vindictive White House, they should be honest about their motivations. Unfortunately, some college administrators may prefer to hide behind the law and misrepresent a decision to scrap DEI as a legal necessity. Blurring the distinction between civil-rights law and internal college policy is not only dishonest, but also legally risky. It may be taken as an admission that the repealed policies were in fact unlawful, inviting investigations and lawsuits by aggrieved parties. Worst of all, it will feed a false narrative that opposition to DEI is widespread, extending even to the colleges that once championed it. This would be especially insulting to the many students and faculty members who have devoted their time and energy to developing DEI initiatives based on assurances that their institutions were committed to the endeavor.
If colleges choose to change lawful programs to avoid antagonizing a vindictive White House, they should be honest about their motivations.
College administrators may hope that by sacrificing whatever the Trump administration dubs “DEI,” they can stave off more existential threats to the core academic mission. Meanwhile, campus opponents of DEI may welcome the Trump administration’s help in rolling back programs they see as examples of “woke” ideology. And some in higher education feel that Trump’s election is proof of a national distaste for the values and culture of colleges, suggesting the need for sweeping reform. But it’s worth remembering that Trump was and is remarkably unpopular: He barely won against a Democratic party whose campaign was in shambles a mere 10 weeks before the election and scrambled to rally behind a candidate who began her run with a 37-percent public-approval rating. Moreover, in a presidential contest dominated by the economy and immigration, higher education was not even a footnote. Nothing here suggests a mandate to reverse policies that enjoyed broad grassroots support in the wake of sustained social movements for race and gender equity.
The supposed “vibe shift” against equity in general and colleges in particular is largely gaslighting, a narrative tailor-made to exploit liberal intellectuals’ propensity for handwringing and self-flagellation. Yes, there were some policies that overreached or focused on silly non-issues, like the worry that terms like “whitewashed” or “blackballed” might be racially offensive (they aren’t: Look up their etymology). But any flaws in DEI programs were trivial compared to the discrimination they were designed to correct.
For the most part, colleges should be proud of their efforts. They should remind the nation of the injustices that inspired #MeToo and Black Lives Matter — injustices likely to become even more prevalent in the Trump 2.0 era — and explain why DEI was and is necessary. If trust in colleges is in decline (like so many other mainstream institutions including the press, the medical profession, and the judiciary — to say nothing of the presidency) it is because of a deliberate and sustained effort to tarnish their reputations — an effort that colleges have done little to resist. The greatest threat to the esteem of colleges is not DEI but their own unwillingness to forcefully defend themselves against specious attacks. It’s no surprise that the anti-college message is winning; so far, it’s the only message.
Gutting DEI will not save colleges from a vindictive and lawless administration bent on destroying them. Only a sustained and coordinated defense of the academy in Congress, the courts, and the court of public opinion can meet this challenge. Colleges must hang together to defend their values and their missions; otherwise, they will surely hang separately, picked off one by one as they try to outrun each other in a shameful retreat from whatever Trump decides is “DEI.”
It should be obvious that the anti-DEI campaign has never just been about DEI, however one defines that term. Long before Trump 2.0 came to power and took up the cause, it has been part of a larger war on higher education. With Trump as commander in chief of the anti-DEI brigades, one front in that war involves using disruptive investigations of overblown infractions as excuses to withhold congressionally authorized funding. Another entails destroying the morale of faculty and students and undermining the still-considerable prestige of American colleges, which, for the moment, remain the envy of the world. Capitulation to the anti-DEI agenda is unlikely to help colleges avoid the former menace. Cravenly abandoning values that they proudly extolled only a few years ago will ensure that they suffer the latter.
