CounterCurrent: Week of 03/03/25
The Trump administration has left little room for ambiguity when interpreting their directives on higher ed's affair with "diversity, equity, and inclusion" (DEI). Still, some colleges and universities appear publicly confused. Thankfully, the Department of Education (ED) is stepping up to clarify the application of nondiscrimination law for higher education in the wake of pro-DEI pushback.
First some background. Trump’s Executive Orders (EOs) “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” and “Ending Radical and Wasteful Government DEI Programs and Preferences” are the orders which sparked the chain of events coming out of ED. Both orders are movement in the right direction to dismantle DEI in higher education—something the National Association of Scholars (NAS) has long advocated for—as the EOs are necessary and important to guarantee compliance with the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) Supreme Court decision and to rid higher education of DEI for good.
Regarding the orders, NAS Policy Director Teresa R. Manning explains on the one hand that the “Restoring Merit-Based Opportunity” order is “more broad, more focused on restoring an ethic of individual character and competence, and, critically, requires federal contractors to certify compliance with DEI bans. This should mean that a school administrator can be held accountable if schools flout Trump’s anti-DEI policies to quietly continue identity politics business as usual.” Whereas the “Ending Radical and Wasteful Government DEI Programs” order handles the application of anti-DEI measures—overseen by the Director of the Office of Management and Budget and assisted by the Attorney General and the Director of the Office of Personnel Management—including disbanding of DEI and further assessment of government programs.
These EOs set the stage for ED to—finally—implement anti-discrimination measures and oversee compliance with Civil Rights Law.
On March 1, ED released a nine-page document of FAQs in response to its Dear Colleague Letter (DCL) of February 14, which notified institutions receiving federal funding that they “must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, scholarship, prizes, administrative support, sanctions, discipline, and other programs and activities.” The document explains how institutions must comply with not only the EOs, but also with the SFFA decision which pertains to ending racial preferences in college admissions. Additionally, the Office of Civil Rights retains the ability to interpret the SFFA ruling in its enforcement and regulations of Title VI of the Civil Rights Act of 1964.
Though the DCL is clear, “But under any banner, discrimination on the basis of race, color, or national origin is, has been, and will continue to be illegal,” evidently more clarification was necessary. The DCL spells out that in order to comply with the law,
All educational institutions are advised to: (1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.
If any further confusion remains, the ED’s FAQ sheet should clarify lingering questions for academic institutions.
But of course, outspoken proponents of DEI have raised objections to the overhaul of the ideology within academia. Some democrats are calling for ED to rescind its order that schools will no longer receive federal funding for having DEI programs. Even though several federal judges have blocked aspects of Trump’s overhauls for the time being, it remains to be seen whether the lawsuits will stick.
Now that Linda McMahon has been confirmed as Education Secretary, we wait to see her course of action either dismantling ED, or wrangling the department through reform—hopefully the latter. At this point, ED is bringing about compliance with and accountability to the law for higher education, so McMahon can easily continue this work while cutting down unnecessary programs within the department.
In the meantime, let’s hope that recent events are the catalyst for higher education’s affair with DEI to be put to rest for good—because colleges and universities will not help themselves.
Until next week.
CounterCurrent is the National Association of Scholars’ weekly newsletter, written by the NAS Staff. To subscribe, update your email preferences here.
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