In the wake of George Floyd’s murder in 2020, your college or university may have established thoughtful new diversity, equity, and inclusion (“DEI”) programs and initiatives. You may have hired chief diversity officers, added new content on your websites, and scheduled activities on your campus.
Since then, attacks on DEI initiatives at colleges and universities have intensified. President Trump’s slew of executive orders (EOs), purposed and designed to eradicate such initiatives, have left many higher institution leaders scrambling to determine what, if anything, they are required to do to comply with these EOs as millions in funding may be in jeopardy. Should you cancel all DEI-related programming? Scrub your website of any content and eliminate related policies? Terminate your chief diversity officer? Challenge and resist the EOs? Or wait and do nothing?
President Trump issued two EOs targeting and eradicating DEI programs and initiatives:
- Executive Order 14151, titled “Ending Radical and Wasteful Government DEI Programs and Preferencing,” orders the termination of all “discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs preferences, and activities… under whatever name they appear.” This EO also directs federal agencies, employees, contractors, grantees to “terminate, to the maximum extend allowed by law” all DEI/DEIA-related grants, contracts, and performance requirements. It requires federal agencies, within sixty days of the EO (by March 21, 2025), to submit a list of all agency or department DEI/DEIA or “environmental justice” positions, communities, services, activities, budgets, and expenditures in existence on November 4, 2024 and determine if any of these have been “misleadingly relabeled in attempt to preserve their pre-November 4, 2024 function”.
- Executive Order 14173, titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” directs federal agencies to terminate “all discriminatory and illegal preferences, mandates, policies, programs, activities…” and to “combat illegal private sector DEI-preferences, mandates, policies, programs, and activities.” It orders the Office of Federal Contract Compliance and Programs (OFCCP) to immediately cease promoting diversity and eliminate affirmative action and “workforce balancing” requirements. It requires all federal grant recipients to certify compliance that “it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” This EO also encourages the private sector to end illegal DEI discrimination and preferences and requires heads of federal agencies to generate reports identifying “the most egregious discriminatory DEI practitioners” in their respective sectors.
These EOs claim to protect civil rights and merit-based opportunity by “ending illegal DEI” and DEI discrimination in the federal workforce, federal contracting, and spending. They direct federal departments and agencies “to take strong action to end private section DEI discrimination, including civil compliance investigations.”
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Legal challenges quickly mounting against the EOs claim that they exceed the scope of President Trump’s constitutional authority. Here are five practical tips for navigating these murky DEI waters as you wait for legal challenges to these EOs to play out:
- Know the law. Review the EOs relating to DEI. An EO is a written directive from the president directing a federal official or agency to take specific actions. EOs are subject to judicial review and are enforceable only if the action is within the president’s constitutional authority. Consult with legal counsel to ensure that you are knowledgeable about federal laws regarding related issues.
- Review, analyze, and consider revising your current policies to ensure compliance with all federal anti-discrimination and state laws. Note that changing the name from DEI alone is insufficient to certify compliance.
- Evaluate whether to scale back or freeze any of your existing DEI programs. You may do this temporarily or cut them altogether.
- Prepare and develop a strategy and plan for internal and external messaging relating to the college or university’s stance on DEI and its compliance status with the EOs.
- “Watch and Wait”. Carefully monitor the legal challenges to the EOs. Wait for joint guidance from the Attorney General and Secretary of Education, which shall be issued 120 days from the EOs, regarding the measures and practices required to comply with Students for Fair Admissions, Inc. President and Fellows of Harvard College, 600 U.S. 181 (2023).
