This report analyzes the compliance challenges public universities face since the issuance of several executive orders that threaten investigation and defunding for a broad range of activities associated with “DEI” and other undefined terms. In Part I, we examine the language of the federal directives in light of universities’ historic obligations and current circumstances. Many institutions have so far chosen some version of either pre-emptive obedience, wait-and-see inaction or offensive defiance. We suggest that institutions will face some combination of four possible courses of action: continue to obey civil rights law, anticipate new standards, manage risks and defend current practices.
Schools’ circumstances are not uniform. Yet all must conform to current legal standards, which are often inconsistent with the new federal policy directives. To clarify, this report sets out the existing state of the law since Students for Fair Admissions, including the scope and limitations of that Supreme Court decision, the continued allowance of race-neutral means to achieve racially diverse learning environments and the applicable tests used by the Court under Title VI. Since many organizations and institutions have already challenged the federal administration in court, we conclude with an analysis of the legal defenses—mostly on First Amendment grounds—that have so far succeeded in securing injunctions against certain banned practices. Part II of this report sets out best practices universities across the United States have used to stay in compliance with civil rights law yet still maintain environments that are diverse, inclusive and consistent with equitable principles.
