Thompson Coburn partner Aaron Lacey was quoted in Inside Higher Ed on the recent injunction blocking parts of two Trump-era executive orders targeting diversity, equity, and inclusion (DEI) initiatives. Questions were raised about whether the order extended to a sweeping “Dear Colleague” letter issued by the department in February.
Aaron, co-chair of the firm’s Higher Education group, said the injunction doesn’t currently affect the department’s Dear Colleague letter. “These are clearly efforts by the current administration to get at similar concerns around DEI programming, but they use different levers,” he said.
The lawsuit focused on the executive orders, which call on agencies to “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities,” while the letter provided a new interpretation of existing case law.
“That litigation predated that Feb. 14 DCL, so the focus of those lawsuits is specifically the executive orders,” Aaron said. “And as you know, the executive orders give specific direction to the agencies. So the injunctions from the courts are essentially telling the agencies not to do those things. Which is just different from the Dear Colleague letter, which is saying, these civil rights laws already exist … and here’s our interpretation of those things.”
Aaron added that although Thompson Coburn does not interpret the current injunction as one that protects colleges from the department’s deadline, it is possible new litigation will be introduced to “scoop in the DCL.”
In the meantime, he said the firm is advising college administrators to take inventory of all programs that could violate the DEI guidance, understand what funding is at risk and then calculate their personal risk tolerance. “We’re just operating in this environment of significant and rapid change, and so what we’re really focused on is trying to help institutions develop constructs in which to make good decisions,” he said.
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The TC Higher Education group recently shared insights on the nationwide injunction on the REGucation blog. Click here to read the post.
