‘Stop DEI’ order lacks force of law but set to sow chaos

The ‘Dear Colleague’ letter issued by the United States Department of Education (DoE) on 14 February ordering an end to all diversity, equity and inclusion (DEI) courses, programmes and activities in America’s K-12 schools and on its college and university campuses does not “have the force and effect of law”, but it is nonetheless likely to have a number of significant effects.

Jon Fansmith, senior vice-president of government relations and national engagement at the American Council on Education (ACE), told an online briefing attended by more than 4,000 teachers, professors and administrators on 18 February that the goal of the letter was “to sow chaos”.

“The goal is to create fear,” he added. “The goal is to incentivise action. Even when a more careful passing of your legal obligations would indicate otherwise.”

Signed by the DoE’s Acting Assistant Secretary for Civil Rights Craig Trainor, the letter asserts that “race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia” and that educational institutions “have toxically indoctrinated students with false premises that the United States is built upon ‘systemic and structural racism’.”

The letter cites as its foundation what the Supreme Court of the United States (SCOTUS) said in its 2023 decision in Students for Fair Admissions v Harvard (SFFA) – that is, that “classifying and assigning students based on their race” violates the “Equal Protection Clause” of the US Constitution – and applies it to all campus activities.

The expanded activities the letter says are now subject to the SFFA ruling include hiring, promotion, compensation, financial aid, administrative support, housing, graduation ceremonies, as well as “all other aspects of student, academic, and campus life”.

While the letter admits in a footnote that its “guidance does not have the force and effect of law and does not bind the public or create new legal standards”, schools, colleges, and universities are given 14 days to comply with its guidance or face having their federal funds cut.

“To be abundantly clear,” said Ted Mitchell, ACE’s president, who served as under secretary of education under president Barack Obama. “‘Dear Colleague’ letters are not law. They are simply statements of intent by executive agencies about how they intend to interpret the law.” he noted.

“So, what is the law? The law is SFFA. The law is the 14th Amendment. The law is Title VI,” he said, referring to Title VI of the Civil Rights Act of 1964, which bans discrimination on the basis of race, colour, national origin, or sex in programmes and activities receiving federal funds.

Aware that many of the administrators, teachers, and professors were concerned about whether they should begin acting now, he warned that if they were in compliance with the law before the letter was issued, they are in compliance with it now.

“Overcompliance, anticipatory compliance [or] preemptive compliance is not a strategy,” he said.

In response to a question about whether the history of racism in the United States can be taught under the new rules, Fansmith said: “The rational part of me would say, of course, you can do those things.

“But I understand why people are asking because there’s so much ambiguity in what [the DoE] has said, that it can lead to the interpretation [that] any mention of race, not necessarily even a policy-based consideration of race, [can] somehow be interpreted as discriminatory and contrary to Title VI.”

Ideological conformity

The DoE’s letter so alarmed PEN America, the Washington DC think tank that monitors academic freedom and censorship in the United States, that the next day – a Saturday of a long weekend – it rushed to issue a press release that condemned the DoE’s threat, complaining that it “deprives students and researchers of access to federal funds unless a school or university bans certain ideas”.

The letter “represents yet another twisting of civil rights law in an effort to demand ideological conformity by schools and universities and do away with critical inquiry about race and identity”, the PEN statement argued.

Under its logic, both a panel on the Civil Rights Movement and Lunar New Year celebrations could potentially be banned, said PEN.

An arbitrary deadline

The discussion then turned to the letter’s 14-day deadline to prove compliance. This deadline significantly differed from President Donald J Trump’s second executive order, “Restoring Merit-Based Opportunity”.

That order directed the Department of Justice and the Department of Education, the secretary and the attorney general, to produce guidance within 120 days regarding the compliance obligations of institutions such as colleges and universities under the SFFA.

The 14-day time limit to show compliance is not in line with any law or established regulation.

“There are no compelling elements of the Administrative Procedures Act [APA, under which the DoE operates vis-à-vis outside institutions such as colleges and universities] that stipulate a 14-day notice,” said Fansmith.

“They’re essentially saying if you are not in compliance with our new interpretation of what the SFFA ruling means for the field of not just DEI but any campus consideration of race, we’re going to give you 14 days to get in line with our interpretation.

“That’s not based on statute. That’s not based on regulatory guidelines. That’s not based on the APA. That just seems to be a relatively arbitrary period they’ve identified,” he said.

Fansmith went on to say that not only is the 14-day period ridiculous because “it would be impossible for most institutions to comply” in that period of time, but, even more importantly for the nervous audience of the information session, the DoE cannot simply cut off an institution’s funds.

“You can absolutely lose federal funding for violations of your civil rights obligations. But that involves a process, including an investigation. It involves multiple points at which resolutions are directed,” he noted. It also allows, he said, for judicial review of the DoE’s determination.

A misinterpretation of ruling

The central pillar of the letter, the DoE’s interpretation of the SFFA decision, is, ACE’s officials explained, fallacious because the decision did not consider campus life, teaching, and programmes like DEI; it dealt solely with admissions.

Mushtaq Gunja, ACE’s senior vice-president, who was chief of staff to the under secretary at the DoE during the Obama administration and is a lawyer, said: “Actually, the way that the litigation was structured, it was relatively narrowly focused on those issues [admissions]. And in fact, the plaintiffs in that case made it pretty clear that they were not trying to litigate the broader questions about affinity groups and cultural centres and speaker series.”

As Gunja continued, he sounded like a law professor critiquing a first-year law student’s work. (As assistant dean in academic affairs at Georgetown University’s Law Center in Washington, DC, one of Gunja’s responsibilities was improving teaching methods.)

“The third full paragraph, page two of this letter [reads]” ‘Although students for fair admission addressed admissions decisions, the Supreme Court's holding applies more broadly’,” he stated.

“They’re missing a little phrase there: ‘In our opinion’,” he said.

This is because the DoE’s assertion is not found in the text of SFFA.

“That is an interpretation of what the application of students for fair admission goes to, but it's not. The court did not address that,” Gunja added.

“And indeed, the court in a few places made a nod to the importance of institutional admissions, to the importance of diversity writ large. They just said that you could not consider race in admissions decisions,” he explained.

The power of perception

Towards the end of the session, Sarah Spreitzer, ACE’s assistant vice-president and chief of staff for government relations, responded to a question in the online chat that asked who had the status to make a complaint about a college or university not complying with the DoE’s stated intent: “Does it have to be an impacted student or an impacted staff or faculty member?”

According to Spreitzer: “Anyone can submit a complaint. In fact, we saw a lot of complaints being submitted during the protests that were taking place on our campuses following the October 7th terrorist attacks” – Hamas’ attack on Israel on 7 October 2023 and Israel’s military response against Hamas in Gaza.

“I think that this [complaints from outside the college or university] is likely. Certain institutions are going to be targeted for things that the public believes are actually out of bounds or that have not been changed post-SFFA.

“I think our advice to institutions is to take a deep breath, be calm, think about doing a review, make sure what you are doing is legal. It’s very important because they [institutions] can be targeted for how they’re being perceived. “They may target specific institutions, or they may have axes to grind,” she said.

Spreitzer’s final words on this subject caught the mood of the hundreds of statements and queries in the chat: “I know that’s not a very happy thought.”