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This focus, however, misses what’s notable about the order. Agencies already expend much effort on quality-improvement initiatives, and vague statements from conservatives — who typically have little interest in or stomach for such work — are unlikely to produce substantive progress in those areas. The push to increase the number and variety of accrediting agencies is a longstanding conservative goal that places trust in the creative effect of a diversified marketplace rather than in the wisdom of Education Department staffers. If enacted, such a reform would have a salutary though likely only marginal influence on the higher-education landscape. These proposals are inconsequential compared to the executive order’s Title VI implications. If the order is long remembered, it will be for reorienting higher education’s civil-rights regime. Where it solicits outrage, that will be why.
The context behind the accreditation executive order is key. The White House simultaneously published another order revoking regulations on disparate-impact liability, discouraging an emphasis on the unintentional discrimination of protected classes. In February, a Department of Education “Dear Colleague” letter on Students for Fair Admissions v. Harvard noted that, while the Supreme Court’s ruling addressed admissions decisions, it “applies more broadly.” In short, the administration believes that Title VI of the Civil Rights Act of 1964 prohibits federally subsidized colleges and universities from “using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid … and all other aspects of student, academic, and campus life.” The letter declared the Department’s intent to “vigorously enforce” that interpretation, and the most consequential parts of the accreditation order follow through on that promise: They direct McMahon to “hold accountable, including through denial, monitoring, suspension, or termination of accreditation recognition,” agencies that violate the law by requiring institutions to unlawfully discriminate “under the guise of ‘diversity, equity, and inclusion’ initiatives.”
The Trump administration’s first 100 days have been a frenetic blur of executive activity. To his most implacable opponents, he is a lawless renegade ruling by fiat. Many old-guard constitutional conservatives share those concerns in numerous policy areas, but civil-rights law is not among them. The SFFA ruling articulates the conservative movement’s enduring consensus that America’s constitutional order is and ought to be colorblind. If that consensus feels to progressives like the wholesale destruction of America’s constitutional order rather than its reclamation, there’s a reason why.
As Christopher Caldwell, a senior fellow at the conservative Claremont Institute, documents in The Age of Entitlement, a host of scholars, litigators, bureaucrats, and judges expansively interpreted the Civil Rights Act, transforming it into “a rival Constitution.” This new and ever-growing administrative and jurisprudential order often conflicted with the written Constitution, usually prevailing over it. While a majority of voters in the mid-1960s approved of the law as written, they felt it “justified by an especially shameful history,” understood it to be “limited by that history,” and “would not have consented to it otherwise.” In Caldwell’s telling, Republicans won elections by scoffing at political correctness, but transformative social change occurred in areas beyond the direct reach of elected legislators. All of this, he writes, ensured that conflict, “when it eventually came, would be constitutional.”
In practice, though, federal agencies often issued regulations critics believed violated the very laws they purported to enforce. In 1975, for example, the Department of Health, Education, and Welfare (HEW) began requiring federally subsidized colleges to submit compliance reports relating to civil-rights law, including Title IX of the 1972 Education Amendments. George Roche, the former president of my institution, Hillsdale College, wrote that HEW “compelled” institutions to submit “detailed information about the race, gender, and ethnic origin of all students and employees.” Published regulations mandated “watchdog affirmative-action programs” to enforce “government racial and sexual quotas.” None of this felt like nondiscrimination.
By then, race-conscious policies were commonplace. One such program produced the Supreme Court ruling that controlled federal jurisprudence in this area for half a century. The University of California at Davis’s medical-school admissions process reserved 16 of 100 places annually for minority applicants. UC-Davis denied admission to Allan Bakke multiple times while admitting racial-minority applicants with lower test scores. Lawyers for the University of California Board of Regents justified this policy in several ways, principally that it served to offset the effects of past discrimination — not at UC-Davis specifically, but in American society. Justice John Paul Stevens and three other justices found this an insufficiently “compelling interest” to overcome Title VI’s race-neutral language. UC-Davis excluded Bakke while receiving federal funds, Stevens wrote, violating “the plain language of the statute.”
Justice William Brennan and three other justices disagreed, and Justice Lewis Powell’s solo opinion resolved that four-four split. He agreed with Stevens so far as to call “racial and ethnic classifications of any sort … inherently suspect,” and also rejected the regents’ main justification for race preferences. But Powell did find compelling a claim barely mentioned in oral arguments. He accepted the claim, drawn chiefly from Harvard University’s amicus brief, that America’s “future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues.’” Treating race as a reliable proxy for intellectual diversity, Powell created a constitutional justification almost ex nihilo.
The passage of time did not resolve the tension between Bakke’s three judicial positions, nor did it significantly increase popular support for race-preferential admissions. Further suits followed, and later courts found it no easier to reconcile race-conscious programs with written law.
Chief Justice John Roberts’s majority ruling in SFFA notes that racial discrimination is “invidious in all contexts” and embraces the view that race-based classification requires more than “an amorphous end to justify it.” Responding to the defendants’ justifications in this light, he asks how the court might discern if leaders have been adequately “trained,” or if the exchange of ideas is “robust.” On these grounds the court overturned Powell’s diversity rule. Justice Neil Gorsuch’s concurrence highlights the importance of this decision for higher education. The Fourteenth Amendment’s Equal Protection Clause plainly “forbids the use of race in distinguishing between persons unless strict scrutiny’s demanding standards can be met.” As the majority ruling notes, those exceptions have historically been few and narrow — either to remediate “specific, identified instances of past discrimination,” or to avoid “imminent and serious risks to human safety.” The exception to those exceptions has been higher education, where past courts have deferred to institutions’ often diffuse justifications. In SFFA, Gorsuch writes, the Court “ends university exceptionalism and returns this Court to the traditional rule.”
This is stated explicitly. The New England Commission for Higher Education stipulates that each institution “observes the spirit as well as the letter of applicable legal requirements.” The Higher Learning Commission assumes that each member “remains in compliance at all times with all applicable laws.” And so on. If agencies did not require this, they would themselves be out of compliance with the terms of their recognition, and could be suspended or terminated. In that case, each institution accredited by that agency would lose access to federal funds. In other words, agencies are already required to monitor accredited institutions for compliance with Title VI — and not as they prefer to read it, but as the Supreme Court has ruled in SFFA. Thus, while perhaps politically momentous, the most important parts of Trump’s accreditation order stated nothing novel: The choice it presents should already have been clear.
Hillsdale College made that choice in October 1975, when its Board of Trustees refused to comply with HEW’s regulations, resolving instead that “Hillsdale College will, to the extent of its meager resources and with the help of God, resist by all legal means this and all other encroachments on its freedom and independence.” President Roche argued that having committed no past injustice, there existed no compelling cause for redress sufficient to override statutory injunctions against racial classification. Moreover, only individual students received federal funds, not the college directly. All of this availed nothing. In Grove City College v. Bell (1984), the Supreme Court ruled in the identical case of a sister institution that “a refusal to execute a proper program-specific Assurance of Compliance warrants termination of federal assistance to the student financial aid program.” The economist Thomas Sowell scoffed at the ruling: “If you buy this line of reasoning, then the local supermarket is a recipient of federal funds, whenever someone buys groceries with a Social Security check.”
If Trump’s accreditation order portends future policy and is upheld against the inevitable legal challenges in federal courts, those jurisprudential chickens may come home to roost. As Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson (1896) declares: “Our Constitution is colorblind.” Institutions whose leaders do not believe this may eventually face a difficult choice: Comply with civil-rights laws as written and approved by taxpayers’ elected representatives or forego the subsidies those taxpayers provide.
