By Paul M. Collins Jr. and Rebecca Hamlin
The Trump administration’s attacks on diversity, equity and inclusion have continued in the form of a “Dear Colleague” letter from the Department of Education to educational institutions – from preschools through colleges and universities.
This letter demands that schools abandon what the Trump administration refers to as “DEI programs” and threatens to withhold federal funding if schools don’t comply.
According to President Donald Trump, these so-called DEI programs – found in the government, corporate and educational sectors and intended to reduce discrimination and promote the equitable treatment of people – are a form of antiwhite racism that hurt national unity and violate antidiscrimination laws.
Although the letter does not have the force of law, it nonetheless signals how the Trump administration plans to aggressively take legal and financial action against educational institutions that refuse to comply, starting on Feb. 28.
As a result, the Trump administration’s threat to remove federal funding, which both public and private educational institutions rely heavily on, is likely to coerce compliance, at least to some degree.
As the letter explains, “The Department will vigorously enforce the law on equal terms as to all preschool, elementary, secondary, and postsecondary educational institutions, as well as state educational agencies, that receive financial assistance.”
Thus, these directives have the potential to fundamentally change education in America.
As professors of legal studies, we’ve taken a close look at the “Dear Colleague” letter. Here’s how the letter infringes on free speech, misunderstands the law and undermines education.
Jeff Gritchen/Digital First Media/Orange County Register via Getty Images
Restricting free speech
The First Amendment to the Constitution protects the right of the people to express viewpoints without fear of punishment by the government.
The Trump administration’s attacks on DEI are part of a broader assault on freedom of speech in which Trump targets media, businesses and everyday Americans the president disagrees with.
By directing schools, colleges and universities to stop DEI policies, the “Dear Colleague” letter clearly restricts free speech rights. That’s the case because creating and pursuing DEI policies is a type of freedom of expression. Banning DEI practices is a form of viewpoint discrimination, which is prohibited by Supreme Court precedent that covers the speech of educational institutions as well as their faculty and staff.
For instance, the letter aims to prevent educational institutions from pursuing missions and policies that promote the concepts of DEI. Such missions are common in higher education and can be found in universities from the conservative Brigham Young University to the liberal University of Vermont.
Frequently, these missions are pursued by requiring students to take courses that encourage them to learn about perspectives or cultures that are different from their own.
While the letter is not clear about which courses it would consider a problem, targeting any topics serves to suppress the free speech rights and academic freedom of faculty, including their freedom to design and teach courses.
This vagueness may be part of the threat. After all, if teachers aren’t sure what they might get punished for, they may be extra cautious and censor themselves.
Misunderstanding the law
Aside from being vague, the letter also seems to willfully misrepresent the 2022 Supreme Court decision ending race-based affirmative action in higher education, Students for Fair Admissions v. Harvard College.
In that case, Chief Justice John Roberts wrote a narrow majority opinion declaring simply that university admissions policies could not aim to create incoming classes with particular racial balances.
Roberts’ opinion was silent on any other type of educational policy. It also states explicitly that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” so long as they are evaluated for admission as an individual.
And yet, the “Dear Colleague” letter takes this decision and runs with it in multiple different directions. First, it falsely claims that the decision prohibits schools from eliminating standardized testing in their admissions process, something many schools have chosen to do in recent years.
Second, the letter falsely states, in contradiction with the ruling’s own text, that the decision applies much more broadly than the context of admissions, to “hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”
Thus, according to the letter, any program that targeted a particular group for differential treatment based on their race would come under government scrutiny, including programs designed to assist students of color, to house students according to affinity groups, and to diversify university faculty.
There is simply no reading of the Students for Fair Admissions decision that suggests such an encroachment on the inner workings of educational institutions. Roberts’ majority opinion says only that students should be evaluated as individuals when applying to colleges and universities.
Effort to undermine education
Tomasz Śmigla, iStock/Getty Images Plus
In sum, the letter places educators, especially those of us who teach about American law and government, in an impossible position.
It states that “educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism,’” suggesting that the U.S. does not have such a history.
But, for example, in order to teach why affirmative action is now unconstitutional, we would have to explain the concept of strict scrutiny to our students. Strict scrutiny is when a court examines a law very carefully to make sure that it does not promote an unconstitutional racial or religious classification. It is a kind of review that is used routinely and appropriately by courts, and was used to strike down affirmative action in Students for Fair Admissions.
That level of judicial review exists because, in the words of Roberts in Students for Fair Admissions, “for almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.”
In other words, the Supreme Court created strict scrutiny as a judicial antidote to the systemic racism that it had helped perpetuate.
Even more basically, it is impossible to teach constitutional law without acknowledging the Three-Fifths Compromise or the Fugitive Slave Clause, both of which embedded the property rights of slaveowners into the founding documents of this country, denying enslaved people full citizenship and its rights.
To not teach students about such topics is, we believe, to fail in our role as educators. To forbid teaching it is an attack on the core mission of educational institutions in a democracy. And even more, this letter aims to prevent teachers from critiquing what the letter itself says and from explaining its own context and history.
Paul M. Collins Jr. is Professor of Legal Studies and Political Science and Rebecca Hamlin is Professor of Legal Studies and Political Science, both at the University of Massachusetts.
Greg says
Hey teachers and professors, let’s stick to educating students, rather that trying to convince then that being queer or lesbian is great. Back about 30 years ago, while working at AMP, Inc, Penn State used to bring in professors to teach college courses at one of the local plants, for employees only. First day of class, the teacher announced to all students she was a lesbian, and she was proud of it. She never came back to teach, as almost everyone complained. None of our business, and don’t want to hear it. Keep your sexual preferences to yourself! Be anything you desire, just leave me out of it.
Pierre Tristam says
I don’t know where the commenter above gets the idea that anyone in education is trying to convince anyone to be queer, or why he thinks that alleged lesbian at Penn State announcing she was proud to be a lesbian is any different than, say, a Marine announcing that he/she/they are proud to be a Marine, or why he doesn’t consider her apparent black-listing as un-American, bigoted and illegal, but whatever. One thing he does make clear is that heteros, who cram their sexuality down everyone’s throat morning noon night and everything in between because that’s what they assume and demand everyone should be, can be the most insufferable pricks on the planet.
Pogo says
@FWIW
https://www.google.com/search?q=desiderata
As you may, and as you will…
Skibum says
Greg, I feel I must state the obvious to you and others who are too full of yourselves to comprehend what IS being taught in schools and what is NOT, your idiotic testimonial that somehow is an example of a teacher trying to “convince” others that being gay is great or whatever, and the complete ignorance of factual statistics on the ongoing bullying of others in our education systems by those who just cannot stand to have anyone around who are not just like them. Just for a change, why don’t you start living what you are spouting from your mouth, and realize that this world we live in has a humongous diversity (yes, I said the dreaded DEI word) of people, not all to my liking, not all to your liking, but your preferences and beliefs get no credit or validation beyond the end of your own nose! Stop criticizing those who are different and make the decision to stand up for themselves amid the ongoing daily abhorrent bullying they already get, whether you are knowledgeable about what they have had to endure or not. If you are such a little man that you cannot show understanding or compassion or, God forbid… acceptance of who they are, then at the very least, keep your mouth zipped and SHUT THE HELL UP! At least then, people might only wonder if you are an idiot rather than opening your trap and removing all doubt.
Sherry says
Thank You Skibum! Right On!
Kevin Nunes says
Professors from the University of Massachusetts, yea right, of course they are anti-Trump!
Atwp says
Can African American History be taught in schools? The answer is probably no. All things white can be taught. Let us face it this is the world we live in. The good thing is Hitler had an end day, Trump will have one too. I hope and pray to God that I’m in good health when he is dead.
Samuel L. Bronkowitz says
I gotta say, it’s amazing what people will fall for. No, college professors are not trying to turn your kids gay. Neither are k-12 teachers. I know I’m just some rando on the internet pointing this out and there’s certainly no need to believe me, so maybe you should try enrolling in a college course to see what they’re like. I’ll give you a hint – no one will turn you gay or make you chase girlboys.
What might happen is that you’ll get exposed to different people and different cultures. That’s the problem – once you see how the other side lives, it’s hard to paint them as the enemy.
Kevin Nunes says
I have been a college instructor – Before I left Massachusetts, I unenrolled my granddaughter from the Amherst Campus there – too much pro gay, anti Trump, anti maga, pro left. A professor’s personal politics should have no place in teaching and educating young people. They are there for an education, not an indoctrination!
Sherry says
Well Greg. . . It’s a good thing you did not touch her. You know that kind of thing rubs off, right? OMG! No need to hide under the bed when “the closet” is right there.
Samuel L. Bronkowitz says
Hi Kevin, I’m sure as a “college instructor” you’re perfectly aware of the limitations that FERPA places on parents and other family members, i.e. no you didn’t.
Skibum says
Kevin, if you live here in Florida, you should already know how our despicable governor has inserted his conservative political indoctrination into every aspect of New College of Florida as well as other state colleges and universities. But none more drastically than the small New College down in Sarasota. He replaced every single person on the college’s board of directors with conservative political hacks, he gutted many of the class offerings there, and is trying to transform it into some kind of far right religious studies college against all wishes of those students who signed up to attend that liberal arts college. That is a textbook definition of “indoctrination”.
Sherry says
Awww. . . Skibum, it’s not “indoctrination” if the political point of view happens to agree with your own. I’ll bet ya ole’ Kevin is fine with religious schools receiving “public school” tax monies.
Ed P says
DEI is a concept and business initiative. It is not EEO. Initially it appeared to be a good social project. But the actual failure is not Trumps fault. Things have been going wrong for a while.
Voluminous law suits and HR complaints were purposefully tamped down and are now being revealed. Contrary to leftist belief, DEI isn’t collapsing just because the Nazis opposed it.
The liberals bullied organizations into making some very dumb decisions. Meritocracy is the only equitable form of hiring and promotion that serves any organization the most effectively. Employees felt the inequities on both sides of the issue. If a DEI hire was not hired or not subsequently promoted some thought it to be a snub. If a non DEI employee was not hired or passed over for promotion, they felt discriminated against. It created a lose/lose situation for middle management everywhere. Sure there were some successes. Just not enough to validate the movement.
It crippled corporate cultures, created tribal teams, alienated and actually excluded individuals. It proved to be one of the drivers of a “hostile” work environments.
You can not “educate, train, or mandate” people’s feelings and prejudices. Long term it was inevitably a failed proposition. It is perceived by many employees as divisive. Corporations would never abandon it, especially if it was working.
Capitalism is possible because of meritocracy. The best and the brightest, the peak performers are what every supervisor wants in any organization. If DEI was the mandate, it added a level of complexity that quote possibly wasn’t always achievable.