President Trump issued an executive order on January 21, 2025 that, among other things, revokes Executive Order 11246, ending the long-standing practice of requiring federal government contractors to take and report on affirmative action efforts thereunder in their work for the government.¹ In addition, the new executive order covers a number of other issues involving diversity, equity, and inclusion efforts in higher education and the private sector. This ASAP focuses specifically on the portions of the executive order that apply or refer directly to institutions of higher education.

The president’s executive order (“Order” or “EO”) includes higher education generally as being among the “critical and influential institutions of American society” that the Order says “have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.”

Asserting that DEI/DEIA practices violate federal civil rights laws that prohibit discrimination based on race, color, religion, sex, or national origin, the Order also declares in broad, sweeping language that such practices:

undermine [the country’s] national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system …

The Order also asserts:

[t]hese illegal DEI and DEIA policies … threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society, including all levels of government, and the medical, aviation, and law-enforcement communities.

As a matter of national policy, the Order therefore directs all federal agencies, including the U.S. Department of Education, to “terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and “enforce [the country’s] longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

A number of remaining provisions in the Order apply or refer specifically to institutions of higher education, as follows:

For all Title IV institutions: The Order directs the United States attorney general and the secretary of the U.S. Department of Education to issue guidance by May 21, 2025 to all institutions that participate in federal student aid programs under Title IV regarding the measures and practices required to comply with the Supreme Court’s June 2023 decision in Students for Fair Admission v. Harvard, which found race-conscious admissions policies unconstitutional.

For institutions of higher education generally: The Order directs the attorney general to work with the heads of all federal agencies, including the secretary of education, to submit a report to the assistant to the president for domestic policy by May 21, 2025 that makes recommendations “for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.” Notably, the Order directs the secretary of education to identify “key sectors of concern withing [USDOE]’s jurisdiction” and “[t]he most egregious and discriminatory DEI practitioners in each sector of concern.” The report is also to recommend “specific steps or measures to deter DEI programs or principles (whether specifically denominated ‘DEI’ or otherwise) that constitute illegal discrimination or preferences.”

As part of these latter recommendations, the Order directs the secretary of education to identify up to nine institutions of higher education from among those that have endowments greater than $1 billion dollars for potential civil compliance investigations of their DEI practices or compliance with federal civil rights laws. But given the Order’s broader directive for the secretary to more generally identify “[t]he most egregious and discriminatory DEI practitioners in each sector of concern,” it seems that institutions with smaller endowments may be targeted as well.  

Finally, the DOE report is directed to identify:

• “[O]ther strategies” to encourage higher education institutions that have not already done so to end “illegal DEI discrimination and preferences” and comply with all federal civil rights laws;
• Litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest; and
• Potential regulatory action and sub-regulatory guidance.

While this section of the Order refers to the “private sector,” the express language does not limit this section to private institutions of higher education. In addition, this section of the Order also applies to “State and local bar and medical associations,” suggesting that public institutions of higher education could be within its purview.

For institutions that are recipients of federal grants outside of Title IV/Federal Student Aid program participation: Institutions that receive federal fundings through grants and contracts with the various federal funding agencies (e.g., NSF, NIH, etc.) will be required to ensure that their employment, procurement, and contracting practices do not consider race, color, sex, sexual preference, religion, or national origin in ways that violate federal civil rights laws. Future grants will include terms requiring institutions (i) to agree that their compliance with all applicable federal anti-discrimination laws is material to the government’s payment decisions and (ii) to certify that they do not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.

The Order allows free speech: The Order states that it does not prevent institutions of higher education from engaging in First Amendment-protected speech, but does not specify any parameters for this protection.

The Order recognizes basic academic freedoms: The Order states that it does not prohibit persons teaching at federally funded institutions of higher education – presumably institutions that are participants in Title IV financial aid programs or federal grant recipients – from “advocating for, endorsing, or promoting” the asserted unlawful employment or contracting practices prohibited by the Order, so long as doing so is part of “a larger course of academic instruction.” As with the recognition of free speech above, the Order does not define “a larger course of academic instruction” or provide any further guidance.

General implementation: The Order provides that it must be implemented “consistent with applicable law and subject to the availability of appropriations.” It is not clear what new appropriations would be necessary to fund the requirements stated in the Order, however, so it is presumed that federal agencies and the attorney general will carry out the Order’s requirements described above.

Littler’s higher education attorneys are actively monitoring ongoing related developments and will provide further updates as additional information becomes available.