During his first week back in office, President Trump issued a broad executive action related to DEI and
affirmative action. The document is sweeping, and I suspect that
the new administration is serious about this initiative –
meaning that the effects of this action will have extraordinary
impact across the federal government and much of the private
sector, too.
While the order doesn't exclusively pertain to higher
education, education is specifically identified in multiple
locations in it, including a directive to both the Attorney General
and Secretary of Education to "jointly issue guidance to all
State and local educational agencies that receive Federal funds, as
well as all institutions of higher education that receive Federal
grants or participate in the Federal student loan assistance
program ... regarding the measures and practices required to comply
with [FAIR v. Harvard]."
Initial Observations
Some initial observations:
First and second (and obviously and banally): elections have consequences and litigation will ensue.
Third, this executive order, like all such orders issued by every president, cannot override laws enacted by Congress or provisions of the U.S. Constitution, as finally interpreted by federal courts. With that said – both because of the leviathan that is the federal government and the long-standing congressional practice of passing broad-language legislation and empowering agencies of the executive branch to fill in the details – presidents have extraordinary powers to affect the ways such laws are interpreted and enforced.
Fourth, and I think most importantly as it pertains to higher education if the administration aggressively follows through on this action (and I suspect that it will), colleges and universities who resist this action and the philosophy behind it, for the first time will experience the awesome power of the regulatory state deployed against them.
The Changing Regulatory and Enforcement Landscape
To date, the Departments of Education and Justice have not been drivers of the fight against affirmative action/DEI in higher education. For example, the main cases decided by the U.S. Supreme Court – FAIR v. Harvard, Fisher v. University of Texas, the Gratz and Grutter v. Bollinger cases, Regents of the University of California v. Bakke, etc. – have been initiated by private parties, not the federal government. To be sure, the solicitor general has often argued before the court in such cases. But this would be different.
Discovery in civil litigation is quite unpleasant; it is nothing
compared to the investigatory, enforcement and regulatory powers
that the federal government can employ. It is one thing to be sued,
go through years of pretrial litigation, and then face a judge (or
judges, if appealed) who themselves have varying interpretations of
Supreme Court precedent; it is quite another to suddenly be visited
by federal officials who have almost unfettered investigatory power
– and the leverage of criminal prosecution against any person
that impedes such an investigation or makes false statements during
it. The stakes of resistance in that context are exponentially
higher.
If this order signals that the administration is going to
aggressively pursue this policy (and, again, I believe that it
will) the top leadership of colleges and universities –
presidents, members of cabinets, and boards of trustees, in
particular – need to reweigh the risks they face from their
own institutional policies and practices around race-based
programs, DEI offices, hiring, financial aid, and admissions, to
name just a few. In short: higher education will ignore or downplay
this executive order at its peril.
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