On March 7, 2025, the U.S. Department of Health and Human Services (HHS) announced that its Office for Civil Rights (OCR) had initiated four investigations into unnamed medical schools and hospitals over allegations that the schools and hospitals “discriminate on the basis of race, color, national origin, or sex” by continuing to implement “DEI” programs.
This blog post explains what HHS OCR is investigating, what laws are at issue, and what those operating medical schools and hospitals with DEI programs should consider, given this and other federal attention to DEI.
What we know about HHS OCR’s investigations
HHS OCR stated that their investigations deal with four medical schools and hospitals “that receive HHS funding.” The specific medical school and hospital programs at issue are “medical education, training, or scholarship programs for current or prospective workforce members” that are subject to “DEI preferences.” HHS OCR cites President Trump’s recent Executive Order 14173, in which President Trump “order[ed] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences,” as the basis for these four new investigations.
In announcing the investigations, HHS OCR noted that it was required to launch these investigations because of EO 14173’s language that required investigations by each agency. That nine-investigation language from EO 14173 reads: “each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.” HHS OCR’s press release announcing the new investigations states that it believes it “is required to identify nine potential civil compliance investigations” by EO 14173, which is not entirely accurate, as EO 14173 actually states that each agency “shall identify up to nine” investigations. Nevertheless, because HHS OCR has announced that it intends to identify nine investigations, it is not unreasonable to conclude that these four investigations are just the beginning of other investigations into medical schools and hospitals with DEI programs.
What laws allegedly are violated by DEI programs
HHS OCR’s press release announcing its four new investigations cites two laws that it believes are being violated by the medical schools and hospitals continuing to implement DEI programs: Title VI of the Civil Rights Act of 1964 (Title VI) and Section 1557 of the Affordable Care Act (Section 1557).
Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. Several years back, some began to point out that Title VI, if read literally, could prohibit DEI programs among those receiving federal dollars. These opinions gained enough steam that the U.S. Department of Education’s own Office of Civil Rights put out a series of fact sheets during the later years of the Biden Administration to counter the Title-VI-prohibits-DEI narrative. In essence, the Biden Education OCR stated that DEI was legal under Title VI because DEI promoted the values the drafters of Title VI sought. Those OCR fact sheets have since been deleted from the Department of Education’s website.
Section 1557 of the Affordable Care Act prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs and activities. HHS OCR created a final rule implementing Section 1557 during the Biden Administration, which stated that Section 1557 applied to organizations that received federal financial assistance from HHS, like hospitals.
What should medical schools and hospitals with DEI programs consider, given continued federal attention to DEI
One very clear takeaway from recent events is that federal agencies are taking seriously President Trump’s directive to find DEI programs and initiate investigations. From the interim United States Attorney for the District of Columbia’s letter to the dean of Georgetown Law inquiring into the law school’s continued DEI program to the Department of Education’s release of a Dear Colleague Letter announcing its interpretation of Title VI and other laws to prohibit DEI, new leaders within the Executive Branch are pushing the issue.
There are a number of ways that federal agencies can enforce Title VI and Section 1557. In the past, enforcement efforts have largely been remedial in nature, involving efforts to bring institutions into compliance through court action. It has been rare to see institutions wholly lose federal funding over Title VI or Section 1557 non-compliance. But that seems to be the approach the Trump Administration is not shying away from, as federal agencies announced on March 7 their intentions to cancel $400 million worth of federal grants and contracts with Columbia University over the Ivy League school’s alleged inaction to combat antisemitism on campus, citing Title VI as the grounds for the federal action. That is an approach the Trump Administration may continue to exercise for other Title VI issues, and could reach those medical schools and hospitals now being investigated by HHS OCR over continued DEI programs.
Another enforcement vehicle the Trump Administration could attempt to use in these investigations of the four medical schools and hospitals is the False Claims Act. As discussed on a recent Husch Blackwell podcast on the concept of enforcing DEI through the False Claims Act, a portion of President Trump’s EO 14173 stated that he declared DEI to be material for purposes of the False Claims Act’s materiality requirements. Schools and hospitals that continue to utilize DEI programs should be aware that enforcement through the False Claims Act is possible, given President Trump’s directives.
Courts will surely play a huge role in determining which of the Trump Administration’s DEI efforts are lawful, as one federal court has already enjoined a portion of President Trump’s EO 14173, but the risk for medical schools and hospitals to continue to operate DEI programs is sizable, given the continued attention across federal agencies. Given the rising risk profile, those considering continued implementation of DEI programs should have serious conversations at the highest levels about the benefits and risks associated with a decision to take action that will be perceived by the Trump Administration to violate Title VI and Section 1557.
[View source.]
