ED’s DEI Guidance Is Dead, but Trump’s Crackdown Isn’t

In the year since Education Secretary Linda McMahon declared all race-based programming illegal and sent universities across the country scrambling, the sweeping Dear Colleague letter that catalyzed the chaos has effectively been killed.

As multiple courts blocked the controversial policy from taking effect and the Education Department dropped its challenge to the ruling, advocates for diversity, equity and inclusion have celebrated the document’s demise. And many of the plaintiffs in those cases have declared Trump’s retreat a “major victory,” urging college leaders to confidently rekindle race-based programs that had been snuffed out as an act of precaution.

But recent statements and actions from the Trump administration suggest the effort to end all diversity, equity and inclusion programs is far from over. And other legal experts with more separation from the court cases warn that ED and other federal agencies still have a variety of other tools to use in the DEI crackdown.

The legal experts predict that new avenues Trump could take to crack down on colleges include civil rights investigations from both the Education and Justice Departments, conditions on grant funding, and court settlements. To justify its actions, they add, the administration could use a Department of Justice memo that went further than ED’s guidance, along with the president’s anti-DEI executive orders—neither of which are currently blocked in court.

An Education Department spokesperson reinforced that idea, telling K-12 Dive that federal law still prohibits schools from racial preferencing and stereotyping and pledged that the Education Department’s Office for Civil Rights will “vigorously enforce” that law “to protect all students and hold violators accountable.” (Inside Higher Ed reached out to the Department of Justice but did not receive comment prior to publication.)

Just last week, the Education Department decided to eliminate race-based criteria from a federally funded program. Days later, it secured agreements from 31 colleges that they would sever ties between them and a DEI nonprofit. New investigations have also been opened related to scholarships at Indiana University and diversity-based retainment goals in Louisiana.

But even without the DOJ memo or the executive orders, the last year has shown that the administration doesn’t need formal guidance or court approval to effectively spark change on college campuses; the threat of penalization appeared to be enough. Despite the fact that federal judges put the Dear Colleague letter on hold in April, universities across the country have since terminated race-based scholarships, scrubbed websites of DEI language, laid off diversity staff members and shut down minority student support centers.

So while DEI advocates and plaintiffs say the court rulings have been clear and universities should proceed confidently with their DEI programs, the legal experts not directly involved in the case say the situation remains challenging at the very least.

“We are now dealing with the conflict between what that baseline of federal case authority says and what this administration is doing,” said Art Coleman, founding partner at EdCounsel LLC, a firm that advises higher ed institutions. “We’ve got to get used to recognizing the threat calculus posed by the Trump administration, and there’s a lot of uncertainty until we get more definitive rulings.”

Still, Skye Perryman, president of Democracy Forward, a legal group that has led much of the litigation against Trump’s anti-DEI policy, urged institutional leaders to remember that for Trump, “the confusion is the point.” The best way to respond, she added, is not by exercising pre-emptive caution but by rejecting “fear-based intimidation tactics” and protecting long-standing programs.

“We are really encouraging institutions to seek legal advice, to weigh their risks, but in looking at the risks to understand that the cost of inaction is often greater than the cost of using the courts to enforce your legal rights,” Perryman said.

Court Rulings Offer Insights

One reason the legality of Trump’s attack on DEI remains muddled to some is because the courts have yet to rule on the substance of banning race-based programs—a move that legal experts say will be necessary to decide once and for all what programming is allowed and what is not.

In fact, legal experts say that at no point in the core case—American Federation of Teachers v. U.S. Department of Education—did the judge directly rule on the legality of Trump’s ban on race-based programming. Rather, it focused on the process through which Trump attempted to do so. (The AFT suit is one of at least three that challenged the guidance.)

In an October ruling, U.S. District Judge Stephanie Gallagher explained that the letter was blocked solely because ED bypassed requirements for public comment and violated the Administrative Procedure Act—nothing more.

“This Court takes no view as to whether the policies at issue in this case are good or bad, prudent or foolish, fair or unfair. But, at this stage … it must closely scrutinize whether the government went about creating and implementing them in the manner the law requires,” Gallagher wrote. “Here, it did not. And by leapfrogging important procedural requirements, the government has unwittingly run headfirst into serious constitutional problems.”

So while the case is a win in that it prevents the Trump administration from using the Dear Colleague letter to back its anti-DEI practices, it’s “certainly not a slam dunk,” said Jill Siegelbaum, a former lawyer for the Education Department and founding partner of Sligo Law Group.

If there’s a ruling that more directly addresses the merits of Trump’s attack on DEI, legal experts added, it’s likely the February court order in National Association of Diversity Officers in Higher Education v. Trump—the case concerning the president’s anti-DEI executive orders. But even that is complicated, they explain.

Issued by Chief Judge Albert Diaz in the Fourth Circuit Court of Appeals, the ruling vacated a lower court’s preliminary injunction, allowing key aspects of the presidents’ anti-DEI directives to take effect, such as cutting off “funding that supports equity-related projects to the maximum extent allowed by law.”

While some media outlets characterized the decision as a significant blow to campus social justice and belonging initiatives, Aaron Nisenson, senior counsel at the American Association of University Professors, one of the plaintiffs in the case, said it’s not that simple.

From Nisenson’s perspective, the judge’s emphasis that federal agencies must act “by law” narrows the scope of the order.

“The court was explicit that the administration cannot ban all diversity, equity and inclusion,” he said. “It needs to be bound by the existing law, not the Trump administration’s fantasy of the law.”

If the White House goes beyond that scope upon implementation, further lawsuits can be filed, Perryman added.

Diaz, an Obama appointee, stressed in the order that the case involved a “facial challenge” of the executive orders, “not the legality or termination of any particular DEI program.” And by the letter of the law, he added, “that makes all the difference.”

“Cognizant of my oath, I’ve framed the limited question before us and answered it. And I’ve (reluctantly) left others for tomorrow,” Diaz wrote. “For those disappointed by the outcome, I say this: Follow the law. Continue your critical work. Keep the faith. And depend on the Constitution, which remains a beacon amid the tumult.”

DEI Crackdown Persists

But until courts explicitly weigh in one way or another on the substance of the administration’s DEI crackdown, the investigations and threats will continue.

“What we’re seeing is a strategy that I believe the administration has publicly admitted to, which is, let’s try it and see if we get knocked down in court,” Siegelbaum said. But “the court process is slow, and … the outcome is deeply uncertain.”

That—combined with the fact that the Trump administration’s tactics tend to force universities to prove themselves innocent rather than using investigations to find fault—creates a situation that forces college leaders to make risk assessments.

“Institutions and schools are looking at that and going, ‘Do I want to sign myself up for that kind of resource depletion, that kind of publicity and to jeopardize potentially other federal funding? Or do I want to capitulate?’” she said. “There’s an absolute chilling effect.”

And now—despite the fact that the guidance is effectively dead—some college leaders have said they won’t go back and restore the cuts. For instance, the University of Alaska Board of Regents plans to keep its anti-DEI policies in place. “The direction of enforcement and potential risk has not gone away,” university spokesperson Jonathon Taylor told The Alaska Beacon.

To DEI advocates, such precautionary actions are an example of institutions unnecessarily caving to Trump’s agenda.

“The bottom line is the law has not changed … The Trump administration wants you to think that the law has changed, but it hasn’t,” said Perryman from Democracy Forward. “What we are encouraging institutions to do is to consider where the programs they are conducting fall within the bounds of the civil rights laws, and to continue to conduct their programs that are consistent with the civil rights laws.”

But the Trump administration has shown no sign of slowing down.

In another move that could put more pressure on institutions, the General Services Administration has proposed a new policy that would require any group—public or private—to certify that it is complying with the president’s DOJ memo in order to receive federal funds. (The GSA manages the operational and procurement needs of federal agencies.)

“So in some sense that’s a whole other avenue of challenge that will have to be faced,” Coleman said. “And while I think the proposal likely suffers from several of the legal vulnerabilities that the Dear Colleague letter suffered from as well, we’ll have to wait and see.”

To Siegelbaum, until court cases consider the substance of Trump’s anti-DEI policies, the waters will stay muddy. But she also hasn’t lost hope.

“It’s just not going to be like a thunderbolt from the sky—one shot destroying the executive orders. It’s just not. We’re going to have to actually get into the nitty-gritty,” she said. “When the dust settles, because dust always does, we will take stock and see what’s next. But for right now, a lot of institutions are taking a hard look at what they are willing to risk and how best they can weather the storm.”