Universities may need to find alternative ways to achieve diversity. Diversity, Equity, and Inclusion (DEI) programs are designed to support and promote the inclusion of underrepresented groups in higher education. However, DEI programs are under scrutiny due to claims of discriminatory practices, particularly after a Supreme Court ruling against race-based admissions.
The U.S. Department of Education Office For Civil Rights initiated investigations into 52 universities, including Yale and MIT, for their DEI programs that use racial criteria in academic programs and activities. The administration challenges that these programs are discriminatory because they exclude Asian American and white students.
In February, the department issued a Dear Colleague Letter directing educational institutions to stop using racial preferences “pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” If institutions do so, they would risk losing federal funding.
This came after President Donald Trump’s anti-DEI executive order ‘Ending Illegal Discrimination And Restoring Merit-Based Opportunity, called on educational institutions to stop race-based preferences because they constitute racial discrimination.
Education Secretary Linda McMahon said that “students must be assessed according to merit and accomplishment, not prejudged by the color of their skin.”
The Purpose of DEI Programs
A Diversity, Equity, and Inclusion (DEI) program is one offered to individuals with shared backgrounds, identities, and abilities, specifically to groups who may be discriminated against or underrepresented in places of higher education.
Generally, DEI programs try to promote inclusion and belonging to underrepresented groups. Their purpose is to support students and improve their success in college.
For example, historically, more men than women have studied science, technology, engineering, and math. A university may create a “Women in STEM” organization to mentor and support women pursuing those fields. Another example is offering living-learning communities with shared experiences, such as Black, Latino, or LGBTQ+.
However, critics feel these inclusion efforts are divisive. They assert that funds for inclusion programs take away resources for other students who are not part of that group.
University DEI Programs Under Scrutiny
DEI programs came under the microscope after the U.S. Supreme Court case Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In that case, the court ruled that places of higher learning cannot use race as a factor when making college admission decisions. This decision ended racial-based preferences to achieve diversity.
Following that ruling, Republican-led states, such as Texas and Florida, pressured their universities to ban DEI programs. In 2023, Texas made a law to ban DEI efforts at public colleges and universities. As a result, many DEI initiatives and resources were eliminated. For example, Texas A&M shut down its LGBTQ Pride Center and its diversity office.
The thought behind these measures is that schools with DEI programs create racial stereotyping and create hostile environments for students of particular races. An extreme example is Columbia University allowing Pro-Palestinian student protests on their campus, creating a threatening environment for Jewish students.
Federal Government Review of DEI Programs
The Department of Education released Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act to help schools evaluate their DEI programs. They explain that “schools with programs focused on interests in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” So schools can still celebrate Black History Month or International Holocaust Remembrance Day. However, they cannot engage in race-exclusionary practices. For example, a club for Hispanic students can’t exclude non-Hispanics from joining.
The Department of Education is also investigating schools that offer scholarships on the basis of race. The schools being challenged are Grand Valley State University, Ithaca College, the New England College of Optometry, the University of Alabama, the University of Minnesota, the University of South Florida, and the University of Oklahoma, Tulsa School of Community Medicine.
Achieving Diversity Through Financial Aid
The push to expand financial aid is one tool universities employ to increase diversity. Since they can’t award impermissible race-based scholarships, they can attract students from underrepresented groups another way.
Harvard University recently announced that it will offer free tuition to students from families making less than $200,000 a year. The university currently provides free tuition, housing, and related costs to students from families making less than $100,000 annually.
The theory is that if the schools remove financial barriers to entry, more students from underrepresented groups and economically disadvantaged groups will apply, thereby increasing diversity.
Academic institutions must be more creative in developing initiatives to increase diversity and stay informed about evolving legislation affecting DEI programs.
Related Resources
- Are DEI Positions and Policies at Law Firms on Risky Legal Ground? (FindLaw’s Practice of Law)
- The Future of Law Firm DEI Programs (FindLaw’s Practice of Law)
- SCOTUS Undoes Two Decades of Affirmative Action (FindLaw’s Practice of Law)
