President Trump’s Executive Orders targeting diversity, equity, and inclusion (“DEI”), discussed in previous client alerts with regard to higher education institutions and business more broadly, have prompted responses from federal agencies, state governments, and private entities. In this client alert, we discuss a few of these recent developments, including guidance published by certain state attorneys general on February 13, 2025; a Dear Colleague Letter published by the U.S. Department of Education’s Office for Civil Rights (“OCR”) on February 14, 2025; and updates concerning recent litigation in this area.
1. Multi-state AG guidance: a defense for DEI best practices.
On February 13, the attorneys general of sixteen states (Massachusetts, Illinois, Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont) issued “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives.” The guidance emphasizes that while discrimination is illegal, DEI “best practices” are not illegal; they instead “help to reduce litigation risk by affirmatively protecting against discriminatory conduct that violates the law.”
The guidance encourages employers to maintain lawful DEI practices by making several key points. First, the guidance notes that not all “DEI practices” are alike: while hiring and promotion decisions can constitute unlawful discrimination, policies that promote DEI in the workforce do not fall within that category. Second, executive orders cannot and do not prohibit otherwise lawful practices. Third, the attorneys general remind employers that they must comply with state civil rights laws, some of which provide more expansive protections than under federal civil rights laws, and that programs designed to promote DEI in the workplace can be valuable in preventing and mitigating violations of anti-discrimination law. The guidance concludes by relaying certain best practices in recruitment and hiring, professional development and retention, and assessment and integration.
The guidance highlights the complex legal landscape in this space: DEI policies and programs can put employers at risk of federal investigation and scrutiny by the current administration, but these same policies and programs remain an important tool to ensure compliance with both federal and state anti-discrimination law. Companies should consult counsel to ensure their DEI programming is implemented in a lawful manner and to understand the risks in altering such programming.
2. OCR’s Dear Colleague Letter: An expansive view of SFFA, Title VI, and the Equal Protection Clause.
On February 14, OCR issued a Dear Colleague Letter clarifying the office’s position regarding Title VI of the Civil Rights Act of 1964, the Equal Protection Clause, and other relevant legal authorities. The Dear Colleague Letter in some respects reminds universities of their obligations under the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (“SFFA”), prohibiting institutions from offering benefits (such as admissions benefits) based on race. The Letter explains that in OCR’s view, SFFA reaches far beyond admissions programs and applies to “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” It further reiterates that universities may not use other race-neutral criteria as “proxies” for race.
The Dear Colleague Letter goes further, appearing to take aim at aspects of universities’ practices that had been viewed as legally permissible under SFFA and other existing law. For example:
- OCR appears to contend that actions may be unlawful solely by being motivated by a desire to enhance student body diversity. Yet, although the Supreme Court held in SFFA that enhancing diversity was not a compelling interest under a strict scrutiny standard, the Court did not characterize such a goal as unlawful, but rather recognized that such a goal was “commendable” and that “[u]niversities may define their missions as they see fit.”
- The Dear Colleague Letter also criticizes certain race-neutral policies that it views as impermissible “proxies” for race, such as the elimination of standardized testing and “reliance on third-party aggregators.” As we explained in a previous client alert, race-neutral admissions policies have thus far been upheld by the First Circuit and Fourth Circuit.
- The Dear Colleague Letter further suggests that certain curricular programming may constitute unlawful discrimination, positing that “DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not . . . . [and] [c]onsequently, they deny students the ability to participate fully in the life of a school.”
The letter concludes by warning that the office will begin to enforce its interpretation of the law beginning February 28, 2025.
The Dear Colleague Letter does not change the law. It does, however, articulate the administration’s remarkably broad conception of federal anti-discrimination law’s requirements and signal how it may target its enforcement efforts and litigation going forward. While OCR’s position may or may not hold up in court, investigations and litigation alike can inflict financial and reputational harms to colleges and universities. Educational institutions receiving federal funding should therefore carefully assess the potential risks facing them in this new environment.
3. National Assoc. of Diversity Officers in Higher Edu. v. Trump: Legal challenge to President Trump’s DEI Executive Orders.
On February 3, 2025, the National Association of Diversity Officers in Higher Education (“NADOHE”), with two other organizations and the Mayor and City Council of Baltimore, filed a lawsuit in the District of Maryland challenging President Trump’s Executive Orders, “Ending Radical and Wasteful Government DEI Programs and Preferencing” (“Jan. 20 Order”) and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (“Jan. 21 Order”) (collectively, the “DEI Orders”). The lawsuit claims that the Jan. 20 Order violates Congress’s power of the purse by improperly ordering termination of all “equity-related” grants or contracts without Congressional authorization. It also challenges the Jan. 20 Order as being unconstitutionally vague by providing no clear definition of the “DEI,” “DEIA,” “equity,” or “equity-related” programs subject to funding termination.
As to the Jan. 21 Order, NADOHE similarly argues that the order violates separation of powers principles by interposing new anti-DEI certification requirements between federal funds appropriated by Congress and their intended recipients; and that the order is unconstitutionally vague in providing no definition of the various forbidden “illegal DEIA and DEIA policies.” However, NADOHE also challenges the Jan. 21 Order as intruding on private entities’ free speech rights under the First Amendment. Because of the order’s anti-DEI certification requirements, and because of its aim to broadly “deter” “DEI programs or principles” through investigations and litigation, NADOHE argues that the order threatens and chills constitutionally protected speech and support for DEI or DEI-related policies.
On February 13, NADOHE moved for a temporary restraining order and preliminary injunction against any interference with federal funding and commencement of any investigations pursuant to the Executive Orders. The court held a hearing on the motion on February 19 and has not yet issued a ruling.
4. Students Against Racial Discrimination v. Regents of the Univ. of Cal.: Testing the University of California system’s admissions program.
The same day that NADOHE filed its suit, Students Against Racial Discrimination (“SARD”) alsofiled a suit in the Central District of California alleging the University of California system’s admissions programs violates Title VI, 42 U.S.C. § 1981, and the Equal Protection Clause. SARD does not identify specific impermissible considerations or allege that any components of the application are used as proxies for race. It instead points generally to the University of California’s use of a “holistic” admissions process. To support its claim that this “holistic” process considers race, it relies on “[t]rends in racial admissions patterns” and certain reports and studies analyzing admissions data, which allegedly show that schools in the UC system had awarded more offers of admission to certain racial groups than could be explained by considering the non-racial factors allegedly in use. The defendants have not yet responded to the complaint.
This case may provide higher education institutions a sense of what constitutes a permissible, or impermissible, race-neutral admissions policy, as well as what proof may be required to state a prima facie claim, especially in light of the new administration’s focus on these programs.
5. National Urban League v. Trump: Further Challenging the DEI Orders—and the President’s Order on Gender Policy.
Most recently, on February 19, the National Urban League (“NUL”) filed a suit in the District of Columbia challenging the lawfulness of not only President Trump’s January 20 and January 21 Executive Orders regarding DEI, but also the January 20 Executive Order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (“Gender Order”). NUL’s suit raises many of the same issues as NADOHE’s: suppression of organizational free speech, unconstitutional vagueness, and infringement on Congress’s power to spend and appropriate funding through legislation without executive interference. However, while NADOHE only challenged the Trump administration’s DEI Orders, NUL also challenges what it characterizes as the administration’s attempt “to erase transgender people from public life” through vague language, leaving organizations “guessing as to whether any acknowledgment of the existence of transgender people, or even the use of the term ‘transgender,’ would violate the Order.” NUL also challenges each of the Executive Orders as unlawfully denying equal protection to “Black people and other people of color” in the DEI Orders’ case, and by discriminating on the basis of sex and transgender status in the Gender Order’s case. The defendants have not yet responded to the complaint.
The law surrounding DEI continues to evolve for higher education institutions and employers. We will continue to monitor the developments and provide additional updates and client alerts as the law and backdrop continues to change.
For further discussion on this topic, you can find our thoughts on DEI here.
Associate Aaron Hill contributed to this blog post.
