It is no secret that the current Administration is attempting to dismantle DEI initiatives. It is also to be noted that the 2023 Supreme Court case involving Harvard made clear that Federal funding was at risk for DEI-adherent institutions, and that on January 21 of this year the President issued an executive order demanding “merit-based opportunity.” The US Attorney General also has stated the the US Department of Justice was urging “the private sector to end discrimination and preferences.” And indeed the business news has documented numerous private sector businesses retreating from DEI initiatives.
On February 14, the Department of Education issued a non -binding letter proposing guidance to all educational institutions receiving Federal money. Such guidance is an indication of how the US Government is going to act in withholding funds, however. Those funds assist many Universities and Colleges, fund basic research and assist just about all public school systems down to kindergarten.
In what areas are DEI initiatives illegal today? Admissions, hiring, promotion, compensation, financial aid, scholarship, discipline, housing, graduation–everything that happens on a campus or in a school.
What are the steps to be taken per the February 14 guidance–what should all affected schools do?
- Revise all relevant policies.
- Cease efforts to circumvent race reliance by indirect means (literally read, this would ban geographical models, models to diversify admissions for educational purposes, just about anything that has the effect of skewing treatment beyond pro rata treatment of identifiable groups).
- Stop using third party contractors to circumvent the ban on what a school cannot do directly.
What’s next? In terms of government enforcement, the handwriting is on the wall. There also is pending litigation concerning the constitutionality of the February 14 guidance, as to which I offer no prediction, particularly since the results in controversial litigation theses days seems so dependent on the disposition of the judges in the court in which a case is being heard (that of itself a very unsettling development leading to forum shopping and inconsistent rulings).