The New Discourse Around DEI: The Evolving DEI Landscape at Colleges and Universities

There has been a lot of talk about diversity, equity and inclusion (DEI) lately, largely due to two recent Executive Orders (EO 14151 and EO 14173) (collectively referred to as “the EOs”) signed by President Trump during his first days in office and subsequent implementing memos issued by the Office of Management and Budget (OMB), the Office of Personnel Management (OPM), and the Justice Department. The EOs aim first to dismantle DEI “mandates, policies, programs, preferences, and activities in the Federal Government.” Specifically, the EOs task the Director of the OPM with reviewing and revising all federal employment practices, union contracts, and trainings to ensure elimination of all DEI and related programs. They next direct federal agencies to combat private sector DEI through civil compliance investigations, to terminate equity-related initiatives, programs, grants, or contracts, and to require certifications (with potential False Claims Act liability if the certifications are not valid) that the contractor or grantee “does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”  These EOs are discussed in detail in our prior Alert.

Federal Action in Response to the New EOs

After the issuance of the EOs, various federal agencies moved quickly to comply by eliminating Chief Diversity Officers, employee affinity groups, DEI-related boards and working groups, and activities or events related to Black History Month, LGBTQ Pride Month, Holocaust Remembrance Day, and other “special observances.” For example, the Director of National Intelligence issued written guidance to employees saying that DEI-related boards and working groups have been curtailed and that no official work time should be spent on DEI-related activities. The Department of Justice also issued a memo announcing closure of all its DEI programs.

The Attorney General and the Secretary of Education are also charged with issuing guidance relating to the “measures and practices required to comply with the Supreme Court’s decision in Students for Fair Admissions v. Presidents and Fellows of Harvard College,” in which the Court ruled that race-based policies should not be used as a factor in university admissions. In light of the EOs, the Department of Education (DOE) has removed or archived hundreds of documents, reports and training materials that mention DEI from its public-facing communication channels and placed employees working on DEI programs on leave. The EOs highlight a significant shift in federal policy with respect to DEI, even though the legal guardrails remain unchanged since SFFA’s narrow legal ruling relating to university admissions.

The federal government has already taken steps to implement the DEI EOs through memoranda and other agency actions. On January 27, the Office of Management and Budget (OMB) issued a memorandum that directed agencies to “temporarily pause all activities related to obligation or disbursement of all Federal financial assistance, and other relevant agency activities that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” However, two courts (a D.C. District Court and a Rhode Island District Court) have enjoined that January 27 Memo, requiring OMB to direct agencies to un-pause funding and barring implementation of the Memo; and on February 10, the Rhode Island District Court issued a further order finding that the new administration failed to un-pause and failed to restore funding as required by its earlier order. Note, however, that there are other agency memos addressing DEI activities specifically, and the scope of the Rhode Island District Court injunction is the subject of continuing dispute, including in an appeal filed February 10 at the Court of Appeals for the First Circuit.

In addition, on February 5, the Justice Department issued a memo stating that “policies relating to ‘diversity, equity, and inclusion’ (‘DEI’) and ‘diversity, equity, inclusion, and accessibility’ (‘DEIA’) ‘violate the text and spirit of our longstanding Federal civil-rights laws’ and ‘undermine our national unity.’” While the EOs had left some doubt regarding whether the new Administration will view all DEI efforts as unlawful, this recent Justice Department Memo seems to signal that the answer is yes. That Justice Department Memo, signed by the Attorney General, states that the Civil Rights Division will “pursue actions, regarding the measures and practices required to comply with Students for Fair Admissions” against higher education institutions that receive federal funds. The Justice Department Memo, however, “does not prohibit educational, cultural, or historical observances--such as Black History Month, International Holocaust Remembrance Day, or similar events--that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” The Memo thus clarifies certain aspects of the new Administration’s views on and likely approach to DEI programming at educational institutions, even while attempting to draw lines and identify some non-prohibited diversity related activities.  

The McNair Scholars Program

The Ronald E. McNair Post-Baccalaureate Achievement Program, also known as the McNair Scholars Program, is currently the subject of a federal lawsuit seeking to eliminate its inclusion of race as one factor in selecting applicants and is emblematic of the growing push among many, even before President Trump was inaugurated, to demolish DEI efforts on college and university campuses. The McNair Program, established by the Higher Education Act of 1965, and administered by the DOE, aims to increase graduate degrees among students from underrepresented backgrounds by providing scholarships to students at over two hundred participating institutions. Participating institutions set their own admissions criteria to become a McNair Scholar, which may include being a low-income, first-generation college student or a member of a group that is underrepresented in graduate education, including being a member of a certain race.

On August 27, 2024, two undergraduate students (one attending the University of North Dakota and one attending the University of Wisconsin-Madison) and two national conservative student organizations sued the DOE, alleging that the racial eligibility criteria allowed by the McNair Program violates the Equal Protection Clause of the U.S. Constitution. The lawsuit, Young Americans for Freedom, et al. v. U.S. Department of Education, 3:24-cv-163 (D.N.D.), seeks to stop the DOE from enforcing the racial eligibility criterion of the program. The student-plaintiffs allege that they we “ready and able” to apply to the McNair Program on their respective campuses but were otherwise ineligible because they are white. The plaintiffs based their arguments on the SFFA ruling.

On December 31, 2024, the North Dakota District Court denied the plaintiffs’ request for an injunction and dismissed the case without prejudice for lack of standing. The court explained that the plaintiffs’ alleged injuries could not be addressed by the court because the parties responsible for administering the program, namely the University of North Dakota and the University of Wisconsin-Madison, were not named as defendants. Specifically, because the court found that the DOE awards the McNair grants to higher education institutions every five years (most recently in 2022) to administer the McNair Program on their campuses, it held that enjoining the DOE would be futile.  In dismissing the case without prejudice, however, the court essentially invited the plaintiffs to instead sue the universities that participate in and set the eligibility criteria for the McNair Program on their campuses.   

Importantly, even though the court dismissed the lawsuit for lack of standing, it agreed that the plaintiffs were injured despite never having applied to the McNair Program. The court determined that the plaintiffs’ alleged injury is “the denial of equal treatment” during the application and admission process because plaintiffs were treated “differently because of their race.” The language in this decision appears to track the path the new Administration is forging against DEI efforts. Despite the roadmap provided by the court, however, on January 24, 2025, plaintiffs asked the court to reconsider its dismissal order on the grounds that the DOE has continuing oversight over the McNair Program through annual disbursement of funds and therefore an injunction would redress plaintiffs’ injuries. It is unclear to what extent the recent EOs and the Justice Department’s February 5 Memo will factor in the DOE’s response to plaintiffs’ motion or the court’s ultimate decision; the DOE’s response is due March 10, 2025 and should offer further insights into the DOE’s views.

This case is just the latest example of the legal minefields colleges and universities must now navigate in the ever-shifting DEI landscape. This case and the new EOs underscore the potential for legal challenges and the need for institutions of higher education to be aware of potential actions regarding DEI activities. It is important for colleges and universities to remain vigilant and revisit their DEI programs and policies to ensure they comply with current legal standards.

Crowell’s Higher Education, DEI and ESG attorneys are ready to advise and assist employers and educational institutions as the law continues to develop in this area