Enforcement Strategy Against DEI In Education and Private Sector Outlined in New Executive Order and U.S. Department of Education Publications
Topics: Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination, Legal Information, New Laws & Legislation
Despite the issuance of a sweeping national federal court injunction against President Donald Trump’s January 20, 2025 and January 21, 2025 Executive Orders that seek to eliminate diversity, equity and inclusion (“DEI”) initiatives in government agencies, educational institutions, and the private sector, the Trump Administration is moving forward with renewed efforts to curtail DEI programing and initiatives across the country.
On February 28, 2025, just one week after the injunction was issued, the United States Department of Education’s Office for Civil Rights (“OCR”) published the “Frequently Asked Questions About Racial Preferences and Stereotypes under Title VI of the Civil Rights Act” (“FAQ”). The FAQ was drafted in response to anticipated questions following the OCR’s publication of the “Dear Colleague Letter: Title VI of the Civil Rights Act following the United States Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”) on February 14, 2025. The FAQ specifically addresses issues related to racial classifications, preferences, and stereotypes and explains how the OCR under the Trump Administration will interpret and enforce cases in this area under Title VI (the education-based counterpart to Title VII of the Civil Rights Act that deals with similar employment-based claims).
The FAQ answers a total of fifteen separate questions ranging from issues related to the Trump Administration’s interpretation of the groundbreaking SFFA opinion to how the administration will enforce Title VI laws with respect to racial discrimination, preferencing and stereotyping. The FAQ provides specific examples of what may be prohibited conduct that constitutes discrimination or creates a hostile environment, as well as limitations on First Amendment protected speech at the secondary and post-secondary level.
The FAQ outlines some key points that both employers and educational institutions should consider going forward with respect to any DEI programs to curtail potential legal challenges. The FAQ did not state that DEI programs violate SFFA, but notes that institutions may not engage in discrimination in implementing DEI programs. The FAQ specifically cautions that such programs must not be used to veil discriminatory policies and may not treat students differently (based on race), create a hostile environment for particular groups, or engage in racial stereotyping, preferences or quotas.
The FAQ notes that an assessment of the legality of DEI programs will “depend on the facts and circumstances of each case.” (See Question 8 of FAQ). However, the government did provide examples of specific conduct to avoid. First, the use of race as a “stereotype or a negative” is unlawful (that is assuming one’s membership in a particular racial group means that they will think the same way as other members, be the representative of a particular culture, or contribute to diversity in the same way as another member of that race). Next, the use of membership in any racial group as a “plus factor,” as set forth in SFFA is prohibited (using race as a plus factor for one group “is necessarily a negative factor for another group”). Consistent with recent guidance from the Administration (See Attorney General Pam Bondi February 5, 2025 Memorandum), the FAQ provides that programs focused on interests in particular cultures, heritages, and areas of the world would not violate Title VI, assuming they are open to all regardless of race or any other protected category. This includes educational, cultural, or historical observances to celebrate or recognize historical events and contributions and promote awareness–they remain lawful as long as they do not exclude others or create a hostile environment.
Just days after the FAQ was published, President Trump signed another DEI-related Executive Order on March 6, 2025 (“March 2025 Executive Order”). In the March 2025 Executive Order, President Trump specifically attacked the law firm Perkins Coie LLP for allegedly engaging in racial discrimination based on the alleged use of “percentage quotas [ ] for hiring and promotion on the basis of race and other categories prohibited by civil rights laws” and the exclusion of “applicants on the basis of race for its fellowships.” On March 11, 2025, Perkins Coie sued the Trump Administration raising multiple constitutional challenges to the March 2025 Executive Order.
Both the FAQ and the March 2025 Executive Order provide important insight regarding the method by which the Trump Administration will target DEI programs and initiatives. Companies that employ race-based quotas are open to attack, as well as those who maintain DEI related programs that exclude other groups based on race or any other protected category. Indeed, the March 2025 Executive Order directs the Chair of the Equal Employment Opportunity Commission (“EEOC”) to review the practices of other unnamed law firms to ensure that they do not reserve certain positions for individuals of a preferred race (i.e., a set aside or quota) or otherwise make decisions related to promotion, client access, trainings, event participation, or travel on a discriminatory basis. The Executive Order directs the EEOC Chair to investigate and take action against law firms who do business with Federal entities to ensure compliance with race and sex-based non-discrimination laws.
While President Trump’s efforts to dismantle DEI programs and challenges thereto are happening in real time, what is evident is that DEI programs are currently an issue that is hotly contested on both sides, and will likely continue to be for the months to come. Staying up to date on the current legal landscape and reviewing DEI policies are of primary importance during this time. CDF will continue to monitor these developments and report on any updates.
