Editor's Note: this article was originally published by American Greatness and is cross-posted here with permission.
The most consequential Presidential Executive Order for American higher education may be the one signed the day after Trump’s inauguration titled “Ending Illegal Discrimination and Restoring Merit Based Opportunity.” While similar to the directive the day before called “Ending Radical and Wasteful Government DEI Programs and Preferences,” the January 21 Order is more broad, more focused on restoring an ethic of individual character and competence, and, critically, requires federal contractors to certify compliance with DEI bans. This should mean that a school administrator can be held accountable if schools flout Trump’s anti-DEI policies to quietly continue identity politics business as usual. Looks like Trump’s team won’t stand for that.
The Order’s first section on Purpose explains:
Illegal DEI… policies violate the text and spirit of our long-standing federal civil rights laws… and also undermine our national unity as they deny, discredit, and undermine American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoiled system. Hard-working Americans who deserve a shot at the American dream should not be stigmatized or shut out of opportunities because of their race or sex.
The second section then states:
It is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.
The Order also directs agencies to combat DEI discrimination in the private sector.
Section three rescinds multiple executive orders promoting identity politics and “diversity” from prior administrations, including one from 1965, signed by President Lyndon B. Johnson, authorizing affirmative action. Other revoked policies date from the Clinton, Obama, and Biden years.
The Order then gets specific, banning the Department of Labor, for example, from “holding federal contractors and subcontractors responsible for “affirmative action” or “allowing or encouraging federal contractors or subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
It then flatly prohibits federal contractors from considering these factors—“race, color, sex, sexual preference, religion, national origin—in ways that violate the nation’s civil rights laws.”
But perhaps most important is the Order’s enforcement provision. Section 3 (b)(iv) reads:
The head of each agency shall include in every contract or grant award (B) a term requiring the [contracting party] or [grant] recipient to certify that it does not operate any programs promoting DEI that violate federal anti-discrimination laws.
The National Association of Scholars has long advocated for just such a contractual provision as part of every school’s Program Participation Agreement with the federal government. Why? Because schools adopt and promote illegal discriminatory policies as institutions. The approval and implementation of these policies are often done by committee. That means that responsibility for the illegal action is diffused. Nameless, faceless bureaucrats are often the drivers. And they’re good at hiding or pointing to others as the real decision-makers.
But this Executive Order seeks to change all that.
It requires someone at the school to certify the school’s compliance with DEI prohibitions and nondiscrimination. A certification usually means a signature—and often a signature under oath. That signatory will then need to answer for noncompliance. And when a single individual is on the hook for something, things change.
Good thinking, Team Trump!
But there’s more. The Order also directs the Attorney General, in consultation with relevant agency heads and the Office of Management and Budget, to recommend how to better enforce federal civil rights laws. Within 120 days of the Order, they must submit:
a plan of 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 this plan, each agency shall identify up to nine potential civil compliance investigations… [including] for state and local bar and medical associations and institutions of higher education within endowments over $1 billion. (emphasis added)
The Order also mentions litigation, regulation, and sub-regulatory guidance as possible ways to deter more DEI.
Note the parenthetical: “whether specifically denominated ‘DEI’ or otherwise.” Trump officials know the rebranding game where ideologues burrow elsewhere in the bureaucracy but are still up to no good, even as their job titles change. That won’t fly in Trump 2.0.
The Order’s mention of wealthy colleges and universities as subjects of investigation is also key. Investigations are routine components of policy enforcement. Decrees and pronouncements in executive orders are nice. But without follow-up, they can become just words on paper. Investigations ensure that what’s on paper becomes real practice.
Second, for better or worse, the wealthier institutions often set the industry standard in the higher education world. Schools hire faculty and administrators from the Ivy League, for example, and they tend to think, “If Harvard does it, we can and should also do it.” For that reason, enforcement efforts may as well start with the Harvards of the country as well.
Finally, section five directs the Attorney General and the Secretary of Education to issue guidance to all state and local education agencies that receive federal funds, as well as to all institutions of higher education that receive federal funds, “regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, also known as “the SFFA decision,” the 2023 United States Supreme Court opinion banning racial preferences in university admissions.
DEI and all its neo-racialist cousins—racial preferences, affirmative action, multiculturalism, critical race theory, marginalized peoples—pick your euphemism!—all are not only disfavored by the President but have been found either outright illegal or legally suspect by the nation’s highest Court. SFFA is also at risk of becoming mere words on paper without strong enforcement action.
So here it comes.
All in all, last week was a powerful start for President Trump in the necessary work to depoliticize and deracialize American education and to restore it to its former excellence.
Bravo.
Photo by Carmen Rodriguez on Flickr
