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Dive Brief:
- Higher education groups representing administrators and faculty filed a lawsuit Monday challenging a recent executive order that threatens to strip federal contracts from colleges and other organizations over their diversity, equity and inclusion efforts.
- In late March, President Donald Trump signed an order requiring federal contractors to agree that they will “not engage in any racially discriminatory DEI activities” or risk severe penalties,including losing eligibility for federal contracts.
- A coalition of groups, including the National Association of Diversity Officers in Higher Education and the American Association of University Professors,argue the order goes beyond barring illegal discrimination by also threatening protected speech and lawful diversity initiatives.
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Dive Insight:
Trump’s March order is his latest attempt to stamp out DEI initiatives in the higher education sector and elsewhere. Under the directive, federal agencies have until April 25 to insert the new DEI ban into their contracts.
The order framed DEI efforts as racially discriminatory activities that lead to “inefficiencies, waste, and abuse” and higher costs for the federal government.
It also defines what the Trump administration deems as illegal DEI as “disparate treatment based on race or ethnicity in the recruitment, employment (e.g., hiring, promotions), contracting (e.g., vendor agreements), program participation, or allocation or deployment of an entity’s resources.”
The coalition — which also includes a faculty group at the University of Maryland, College Park, as well as the National Association of Minority Contractors and one of its local chapters — took aim at this definition in the new lawsuit.
The groups argued that the definition is overly broad and encompasses lawful practices that “routinely, necessarily, and legally recognize and vary based on race.”
According to the lawsuit, the executive order appears to forbid voluntary gatherings of employees if they are related to race or ethnicity — even if those meetings are open to all. It would also prevent employers from offering programming meant to support their workers who may “face challenges due to their actual or perceived race or ethnicity.”
The lawsuit pointed out that AAUP represents faculty members who research equity-related topics and teach courses focused on specific racial or ethnic groups, such as Black or Latino studies. Many of them “rely on federal contracts to support their work,” according to the lawsuit.
“This is particularly true at medical schools or institutions that conduct health research, where AAUP represents a significant number of members who focus on medical and other scientific research related to whether and how race and ethnicity are connected with health outcomes,” the lawsuit states.
The higher education plaintiffs fear that the new anti-DEI order will force them to choose between abandoning such work and risking their institutions’ access to federal contracts.
“This executive order is a direct attack on academic freedom and the First Amendment — an attempt to coerce silence by threatening faculty, students, and federal partners who confront the realities of race and discrimination,” AAUP President Todd Wolfson said in a Monday statement.
This isn’t the first time AAUP and NADOHE have challenged Trump’s anti-DEI orders.Both groups are also part of a broader coalition that sued over two anti-DEI directives that Trump signed during the opening days of his second term.
One executive order directs federal agencies to cancel “equity-related” grants and contracts to “to the maximum extent allowed by law,” while the other requires federal funding recipients to certify that they don’t have efforts “that violate any applicable Federal anti-discrimination laws.”
The groups won a preliminary injunction against those provisions last year after arguing they were unconstitutionally vague and didn’t define what the Trump administration considered illegal DEI.
However, an appeals court initially paused and then vacated the preliminary injunction in February, ruling that the groups were unlikely to succeed in their arguments. In the majority opinion, Judge Albert Diaz wrote that the certification requirement only required recipients to attest that their DEI programs don’t run afoul of antidiscrimination law.
“Plaintiffs suggest that defendants view all DEI programs as illegal under existing antidiscrimination law,” Diaz wrote. “Perhaps, but the Certification Provision doesn’t say that.”
Diaz added that the groups could challenge enforcement actions that stem from the executive order if the Trump administration “misinterprets federal antidiscrimination law.”
That appeals court remanded the case to the lower court, which has yet to issue a final ruling.