Navigating new DEI landscape poses legal risks for educators

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Educators from K-12 to higher education are analyzing their DEI policies and programming following a February letter from the U.S. Department of Education that threatened to cut federal funding if the institutions had DEI efforts that were “discriminatory.” While there is room to comply with the new directives and maintain some programming and policies, careful attention must be given to determine which policies or programming can remain.

“There’s room for educational institutions to pursue their mission and values while not running afoul of the administration’s DEI directives,” said Nicole Engisch, a partner at Dorsey & Whitney who represents clients in government enforcement actions. “But each institution will need to do a careful risk assessment regarding its current practices and decide for itself what should be changed and what should remain in place.”

On Feb. 14, the department sent a “Dear Colleague” letter to universities, asserting that funding cuts would occur if they continued with DEI programming.

“[U]nder any banner, discrimination on the basis of race, color, or national origin is, has been, and will continue to be illegal,” wrote Craig Trainor, the Education Department‘s acting assistant secretary for civil rights.

Then, on Feb. 28, the department’s Office for Civil Rights published “Frequently Asked Questions About Racial Preferences and Stereotypes under Title VI of the Civil Rights Act.” The FAQs, while not outright calling for institutions to cease DEI efforts, cautioned that programs used to veil discriminatory policies, or create a hostile environment would face consequences.

The impetus for scrutinizing these policies goes back to 2022, when the U.S. Supreme Court decided Students for Fair Admissions v. Harvard (SFFA). In that case, the court prohibited using race in admissions decisions. The Trump administration has asserted that DEI conduct that looks like conduct prohibited by SFFA would be considered discriminatory. However, there is lack of clarity on what constitutes discrimination.

“So, for example, the FAQs say that schools may offer programs and celebrations that focus on certain cultures, heritages, and areas of the world, like Black History Month, International Holocaust Remembrance Day, etc., but they must be open to students of all races,” Engisch said. “The FAQs, however, warn against activities that foster racial harassment or that create a racially hostile environment. And what is a racially hostile environment will depend on the facts and circumstances, including the age of the students.”

Engisch also notes a difference between elementary schools and colleges.

“The FAQs suggest that elementary schools are given less leeway to have racial discussions (such as discussion of oppressors in a racial hierarchy) than colleges,” Engisch said.

However, she maintains that, under the FAQs, colleges might engage in “extreme practices” that would be characterized as a racially hostile environment. This includes things such as pressuring students to take certain positions on racially charged issues or participate in “privilege walks.”

“On the one hand, the department is warning schools not to engage in any classifications that are race-based (or based on other protected class status) or to engage in racial segregation,” Engisch said. “On the other hand, the department seems to be giving the green light to programing that raises cultural awareness so long as the programs are open to everyone regardless of race and so long as they don’t have the effect of creating a racially hostile environment.”

“But even if the programs are open to all, the department may still pursue an enforcement action if they find evidence of what they think is a racially hostile environment in one of these programs,” Engisch added. “That’s the challenging part.”

Engisch notes that the FAQs do not have the force of law and that ultimately courts determine whether schools have engaged in illegal discrimination.

“That said, no educational institution wants to be the subject of a government investigation or enforcement action, even if the institution is likely to prevail in court,” said Engisch, who served as a Hennepin County District Court judge from February 2014 to January 2023.

Minnesota Attorney General Keith Ellison, joining 15 other attorneys general, issued multistate guidance for schools on DEI and accessibility initiatives on March 5, emphasizing that “schools, colleges, and universities have broad latitude under the law to create diverse, equitable, inclusive, and accessible educational environments.”

Ellison asserted that the Education Department’s letter and FAQs “cannot prohibit or restrict universities from pursuing and implementing diversity, equity, inclusion, and accessibility efforts” and “does not and cannot keep K-12 schools from complying with state anti-discrimination and human-rights laws or from creating welcoming environments where every child can succeed.”

“We attorneys general will continue to push back on their efforts to mislead and intimidate students, teachers, and administrators, and we will not let them take us back to Jim Crow,” Ellison avowed.

Engisch predicted that the FAQs would have a “chilling effect” on programs and policies. “Some institutions may choose to err on the side of caution, complying with the FAQs to a great extent, while still maintaining their own core values and institutional goals,” Engisch said.

For educational institutions reviewing their policies, Engisch stressed that there is “no one size fits all to conducting a review of DEI programs.” They might also want to look at external websites and communications.

“Educational institutions, like other organizations, may want to review their policies and practices to assess their risks and to make any appropriate changes,” Engisch said. “This type of DEI review, if directed by a lawyer, may be privileged, which can be very helpful in protecting the back-and-forth discussions about what to change and what not to change.”

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