Biden Civil Rights Chief: Trump’s Anti-DEI Orders Aren’t Law

ST. LOUIS—A former leader of the Education Department’s Office for Civil Rights during the Obama and Biden administrations called the Trump administration’s targeting of undefined diversity, equity and inclusion legally spurious and urged colleges and universities to stand up for their values.

At a panel last week at the annual Education Writers Association conference here, Catherine Lhamon said it’s “enormously frustrating to me to see the federal government use its voice to say what is not so.” Further, she said, “I’m so frustrated with the many schools that are changing their activities responsive to this undefined ill that is also not in statute, or in regulation, or in actual law.”

She noted the spate of universities that have renamed their DEI offices and said that can’t be all that the Trump administration is demanding. She added that universities taking actions they think will satisfy the federal government in an effort to keep their federal funding “didn’t work that well for Columbia.”

“We’ve put ourselves as a nation in the position where there’s a witch hunt about a set of activities that are perfectly lawful, that are actually public goods, that are actually consistent with our highest national aspirations,” Lhamon said, calling this “dangerous for all of us—and we don’t have to agree to it in a way that we’re seeing so many school communities accede to.”

Her comments and those from the other panelists more broadly highlighted the predicament colleges and universities across the country find themselves in regarding DEI. The Trump administration quickly moved to defund so-called illegal DEI programs that officials claim run afoul of the president’s executive orders and their interpretations of federal civil rights law. Universities that have DEI programs have faced broad threats to their funding.

Trump’s anti-DEI executive orders and other actions have been challenged in courts, but the administration’s ongoing investigations and withholding of research funds pressure institutions to fall in line regardless.

Lhamon said the Trump administration’s lack of a definition of DEI or specifics about what institutions can or can’t do is “the tell.” She said Education Secretary Linda McMahon, at her confirmation hearing, “testified that she did not know what DEI is as explained in the executive orders.”

“And if she does not know, then how can any school be expected to know?” Lhamon asked. “And the administration has repeatedly—in executive orders, in Dear Colleague letters, in statements, anywhere—refused to define what its understanding of ‘illegal’ DEI is.” (The White House and Education Department didn’t respond to Inside Higher Ed’s requests for comment.)

Lhamon noted that courts have blocked Trump’s Education Department from enforcing its related Feb. 14 Dear Colleague letter, in which the Office for Civil Rights said all race-based differential treatment in higher education is forbidden. Despite the injunctions, though, “a lot of schools are responding as if what is in that Dear Colleague letter is law,” Lhamon said.

Ted Mitchell, a co-panelist and president of the American Council on Education, said that after the Dear Colleague letter was released, his organization told colleges and universities, “Dear Colleague letters aren’t the law,” and if they were already complying with the actual law on Inauguration Day, “sit on your hands and do nothing different.”

“How did that go?” moderator and Signal Ohio reporter Amy Morona asked.

“Not well,” Mitchell said, to laughs from the audience.

Mitchell said presidents are experiencing fear and chaos.

“There’s no consistency, there’s no rationality, the world is turned upside down,” he said. Presidents fear “they’re going to hit a trip wire that’s going to trigger some kind of negative action by the government,” he said.

At many institutions, inaction was unacceptable because their own governing boards “wanted them to take action against DEI offices,” Mitchell said. And even though the Dear Colleague letter is now enjoined, he said language from it has appeared in anti-DEI state laws. Those laws will continue to restrict DEI in those states even if Trump’s efforts fail.

Alabama’s Senate Bill 129, which passed last year before Trump retook office, could stop faculty from teaching about what the bill dubs “divisive concepts”—such as the idea that meritocracy is racist—even in a critical way.

Another of the panelists, Sydney Testman, a Black student at the University of Alabama at Birmingham, is among the plaintiffs in a federal lawsuit seeking to overturn SB 129 as unconstitutional.

“My university made the decision to pre-emptively comply and change their DEI office name, unfund student organizations and decide to start stripping scholarships and stipends,” she said, adding that she was among the students who lost their stipends.

(The university announced in July that it closed its DEI office, rather than just changing its name, though it simultaneously announced a new Office of Access and Engagement. A university spokesperson told Inside Higher Ed in an email, “We have reviewed our scholarships for compliance with federal law, including the Title VI obligations clarified by the Supreme Court and recent guidance from the federal government, and we are continuing to work with donors on any necessary adjustments. Our mission is to make a high-quality education accessible and to support students of all backgrounds.”)

Testman said changing the names of DEI offices is a “slippery slope.”

“Now that this office’s name has changed, their mission may have to change now, and once their mission has changed, they may not be able to help the same students that they helped before,” Testman said. She also urged journalists to spell out the acronym “DEI” as “diversity, equity and inclusion,” asking them to “add the power back into those words.”

Lhamon said it’s time to stand up, “living up to our principles, living up to academic freedom, living up to what we came together to be as universities, what we think of as educators, why are we in this work.”