Presidential Executive Order Targets DEI in Higher Education

January 22, 2025

The Ending Illegal Discrimination and Restoring Merit-Based Opportunity Executive Order (EO) issued on Jan. 22, 2025, takes aim at diversity, equity and inclusion programs at institutions of higher education. (McGuireWoods’ affirmative action and OFCCP compliance team cover the other provisions of this Executive Order here.) The EO begins with the premise that “institutions of higher education have adopted and actively used dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws.”

Here’s what higher education institutions need to know.

  • Institutions of higher education with endowments over $1 billion may face investigations and federal lawsuits. The EO requires the attorney general within 120 days or by May 22, 2025, in consultation with relevant federal agencies like the Department of Education, to submit a report to the assistant to the president for domestic policy containing recommendations for enforcing federal civil rights laws.
    • The attorney general’s report shall include a “plan of specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences.” As part of this plan, the Department of Education and other agencies shall identify up to “nine potential civil compliance investigations of . . . institutions of higher education with endowments over 1 billion dollars,” among other types of organizations such as publicly traded corporations, large nonprofit corporations or associations, foundations with assets of $500 million or more, and state and local bar and medical associations.
    • The attorney general’s report will identify key sectors of concern, which likely will include higher education. The report also must identify the most egregious and discriminatory DEI practitioners in each sector, which may include the wealthiest and most prestigious colleges and universities.
    • The attorney general’s report also will identify litigation appropriate for federal lawsuits, intervention or statements of interest in addition to potential regulatory action and subregulatory guidance.
  • Joint guidance from the U.S. Departments of Justice and Education on compliance with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), is forthcoming by May 22, 2025. The EO requires the attorney general and secretary of education to issue joint guidance to all state and local educational agencies that receive federal funds and institutions of higher education that receive federal grants or participate in federal programs under Title IV of the Higher Education Act of 1965, as amended, regarding the measures and practices required to comply with SFFA.

The EO addresses First Amendment freedoms and specifically does not prevent “State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech” and “does not prohibit persons teaching at a Federal funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.”

Institutions of higher education, especially those with an endowment of $1 billion or more, should review their policies and practices for compliance with civil rights laws such as but not limited to Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights Act of 1964, among other civil rights laws.

McGuireWoods’ higher education practice group tracks developments on the implementation of this EO, including the attorney general’s report and the forthcoming Joint Guidance on SFFA. For additional information or questions about the information contained in this legal alert, please contact the authors.

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