adventtr/E+/Getty Images
After the Trump administration withdrew its appeal of a lower court ruling finding that the Department of Education’s Feb. 14, 2025, Dear Colleague letter was illegal, some questioned why, many celebrated—and the Trump administration kept plugging away, working to get to the same goal of rolling back diversity, equity and inclusion efforts in other ways.
There are a lot of good things to note about the court decision vacating the DCL, which sought to restrict DEI efforts at all educational institutions receiving federal funds, and the certification requiring school districts to follow the directives provided by the DCL in order to continue to receive federal funds. Most importantly, in a period when the Trump administration is repeatedly pushing the boundaries beyond its statutory authority, the judicial branch stepping in has proven to be critical to ensure the rule of law, especially when the legislative branch is not forcefully doing so.
That said, complacency may be one downside of the court ruling, and what we should have learned over the last year is that the administration has numerous tools in its toolbox to try to implement policies aligned with its ideology.
The August decision vacating the DCL and certification requirement states, “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 … it must closely scrutinize whether the government went about creating and implementing them in the manner the law requires. Here, it did not. And by leapfrogging important procedural requirements, the government has unwittingly run headfirst into serious constitutional problems.”
The court then finds that without meeting the notice-and-comment requirements of the Administrative Procedure Act and the Paperwork Reduction Act, the administration attempted to change civil rights law (despite what the Department of Education would have you believe, the Supreme Court’s decision in SFFA v. Harvard was just about admissions) without providing the necessary evidence and reasoning.
One week after dropping its appeal, the Trump administration, through the General Services Administration, filed a proposed information-collection change to amend the certification requirements for all entities receiving grants, cooperative agreements and financial assistance, such as loans, to align them with the administration’s anti-DEI guidance and impose other requirements in line with its ideological views.
So, in other words, once the information collection is final, it will likely impose many of the same certification requirements on colleges and universities that want to receive federal funds, whether that is discretionary grants, formula grants or Title IV student aid. And its impact will go well beyond the education sector, with almost all recipients of funding from federal agencies being required to make the same certifications or risk losing federal dollars. Currently, according to the notice, more than 220,000 entities that rely on federal assistance would be impacted.
Some of what would be included in the revised certification requirements would reiterate what grantees have always certified—that they won’t violate federal antidiscrimination laws. But, just like the chilling effect that is caused by much of what this administration does, the detailed requirements in the proposed certification would likely cause colleges to stop doing things that they are allowed to do and end policies that don’t violate current antidiscrimination law (remember, the executive branch can’t determine what violates the law—that remains in the hands of the judicial branch).
The revised certification that would be added to the System for Award Management, the system that every applicant is required to register with before applying for and receiving federal grants, lists “examples of practices” that may violate antidiscrimination laws, including “granting preferential treatment based on race or color, such as race-based scholarships or programs, preferential hiring or promotion practices, or access to facilities or resources based on race or ethnicity, including through the use of ‘cultural competence’ requirements, ‘overcoming obstacles’ narratives, or ‘diversity statements.’” It also lists training programs that “stereotype, exclude or single out” individuals based on race or are deemed to create a “hostile environment.”
It goes further than the DCL and requires institutions to agree to certifications around illegal immigration and activities that threaten public safety—similar language that the department earlier used in its rule restricting the kinds of jobs eligible for Public Service Loan Forgiveness. It also extends some of the certifications to cover activities that the organization partakes in, whether or not the activities are using the federal funds. And it adds violation of the False Claims Act as a penalty for acting contrary to the certifications—which is designed to scare institutions by subjecting them to triple damages and whistleblower lawsuits.
This Department of Education has a track record of scaring colleges into eliminating programs or policies that haven’t been found to run afoul of federal antidiscrimination law. A month after the Feb. 14 DCL was issued, the department announced it was opening investigations pursuant to the letter into institutions that partnered with a nonprofit organization, the PhD Project, to provide supports for Black, Hispanic and Native American students to pursue business degrees.
Before the investigations were concluded and after the DCL was withdrawn, the department announced 31 resolution agreements with institutions of higher education to end their partnerships with the PhD Project. In this case, the means—even though illegal and withdrawn—got them to their desired ends.
There are strong arguments, based on the recent court decision, that these certification requirements continue to go beyond the department’s statutory authority, even if they meet the notice-and-comment requirements, since current law prohibits the Department of Education from exercising any control over curriculum or administration of schools. Furthermore, the requirements may impede on free speech and may be unconstitutionally vague.
However, what has become clear is we can’t take our eye off the ball or let our guard down. This administration has a large toolbox and higher ed’s toolbox must continue to be carried around at all times. That should start with every federal grantee submitting comments about why these proposed certifications exceed the administration’s statutory and constitutional authority. A wolf in sheep’s clothing is still dangerous and harmful.
