Education lawyer calls Trump’s order to remove DEI ‘regulation by intimidation’

Litigation may change President Donald Trump‘s Feb. 28 deadline for all American schools to remove any reference of diversity, equity and inclusion.

If the order stands, schools that do not shift actions and eliminate race-based admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing and graduation ceremonies risk federal funding, according to U.S. Department of Education Acting Assistant Secretary for Civil Rights Craig Trainor.

“It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity,” Trainor wrote.

According to Ted Mitchell, president of the American Council on Education, which represents more than 1,600 colleges and universities, the law does not yet specify enough for action within the deadline. USA Today reported that he warned higher education leaders in a Tuesday webinar not to surpass the vague demands.

“Overcompliance, anticipatory compliance, preemptive compliance is not a strategy. The strategy needs to be much more considered, much more nuanced,” Mitchell said.

The U.S. DOE issued a Dear Colleague Letter (DCL) on February 14 which previewed how the agency will handle raced-based preferences and DEI initiatives in K-12 and universities under Trump’s second term as president. The National Law Review reported that the DCL reflects the administration’s view that any preferential treatment based on race is discriminatory, including neutral efforts to increase on-campus racial diversity and some DEI-specific training and programming.

The DCL directs educational institutions to ensure their policies and actions comply with existing civil rights law and promises to provide more guidance in the coming weeks.

School attorneys have criticized the new guidance. EducationCounsel partner Art Coleman in Washington, D.C. told USA Today that the letter is “overreaching,” “skewed” and “ambiguous.” Texas education lawyer Jackie Gharapour Wernz called it “regulation by intimidation.”

“They seem to be suggesting that if you have any goal of having a diverse student population, then you’re violating the law. I just don’t think there’s any basis for that,” Wernz said.

Attorneys are cautioning schools to avoid overreacting, but underreacting can be a problem. Schneider Education & Employment Law Founder Scott Schneider advised schools to consult with legal counsels and decide level of risk.

“Start with the law. Then try to get to a place that’s compliant with the law and is as consistent with your values as you can be,” Schneider said.

Ranking Member Robert C. “Bobby” Scott of Virginia serves on the House Committee on Education and Workforce and said that Brown v. Board of Education brought the U.S. Supreme Court decision of ‘separate but equal’ having no place in the American school system.

“While the decision was lauded as a victory to right constitutional wrongs, the massive resistance movement that followed slowed efforts to eradicate decades of legal segregation. Similarly, in the wake of the Students for Fair Admissions (SFFA) v. President and Fellows of Harvard College decision, conservatives have gone to extremes to interpret the law in ways the Supreme Court never considered,” Scott said.

The intent of race-conscious admissions policies was to counterbalance factors such as standardized tests and legacy and developmental admits that would prevent Black and minority students and students in poorer school districts from thriving.

“Although the Court struck down race conscious admissions through affirmative action, the SFFA ruling only limited the consideration of race in college admissions programs – not other practices aimed at ensuring that students from diverse backgrounds feel included and part of the campus culture. In fact, the Supreme Court recognized there were cases where consideration of race was still constitutional. Specifically, the Court explicitly mentioning the U.S. Service Academies as an environment where a compelling governmental interest could necessitate racial considerations.”

Scott said that Trump’s order is broad and withhold already-allocated funding for public schools and universities if they continue DEI. He said Trump’s interpretation is “an ill-advised and far-reaching interpretation of the SFFA ruling. It is already being challenged in courts. If the Dear Colleague issued by the department actually carried the force of law, I’m sure it would be challenged as well.”

Schools in the United States “must continue to ensure that the opportunity of education is a right made available to all on equal terms. Students and parents deserve nothing less than the right to an equitable, inclusive and well-rounded education.”