President Joseph Biden has been in office for over three weeks, bringing more changes in the realm of Title IX. Where are we now, what do we need to know and do, and what is expected to come? This is the second part of a multi-part series addressing some of the last gasps of the Trump administration and the opening salvos of the Biden administration, and what they mean for school leaders under Title IX. (Find part one here).

Our topic today is diversity, equity, and inclusion in schools, colleges, and universities. This is an important topic under Title IX because DEI initiatives include those supporting LGBTQ students and employees and other sex-based topics. Although the Biden administration has rolled back the most controversial of the Trump team’s orders with respect to DEI initiatives, schools, colleges, and universities should still be cognizant of the potential for lawsuits from private parties who disagree with DEI initiatives. Those challenges should not prevent schools, colleges, and universities from continuing important DEI work, but educational institutions should work closely with legal counsel to craft such programs in the most legally defensible ways.

Part 2: DEI Initiatives in Schools, Colleges, and Universities under Biden

In late 2020, then-President Donald Trump signed an Executive Order attacking what the order described as “anti-American race and sex stereotyping and scapegoating” by federal contractors and recipients of federal grant funds, including schools, colleges, and universities. The order addressed racial and sex sensitivity trainings in employment and in schools. What was the action and what changes have we seen with respect to this issue in the first few weeks of the Biden administration?

What was the Action?

As we described in a prior Franczek alert, the Trump order essentially banned racial and sex sensibility trainings for employees of federal contractors and for employees and students of certain grant funds, including some schools if the trainings addressed systemic racism and sexism, implicit bias, and other common DEI topics. Please review that previous alert for more background on the order. The order was more bark than bite for educational institutions. Rather than outright prohibiting certain types of training, it directed agencies issuing federal grants (such as the U.S. Department of Education) to issue guidance and otherwise assure compliance with the executive order to receive future grants. The ED department never got around to doing that before the Trump team departed. A federal judge also, in November, issued a preliminary nationwide injunction against the order in a challenge by LGBT rights groups.

Does it Still Matter?

Because the agencies required to implement the order changed hands with the inauguration and there is now no challenger to the pending lawsuits against it, it is unlikely that the Trump order would have had any ongoing impact even without further action by the Biden team. Nonetheless, President Biden on his first day in office reversed the ban on diversity training. A Biden order issued that day also mandated that government agencies promote diversity.

The Biden administration’s attack on the previous administration’s controversial efforts regarding DEI initiatives did not stop there. In early February, the ED department’s Office for Civil Rights (OCR) closed an investigation against Princeton University regarding alleged racial discrimination. As the Daily Princetonian explained, the Trump OCR opened the complaint against Princeton after the University’s President stated in a letter to the community that despite the University’s celebration of diversity, it had for most of its history been exclusive, and outlined steps the University would take to address systemic racism. Trump’s OCR interpreted this as an admission that Princeton’s educational program is and for decades has been racist. This would be an obviously impactful attack on DEI initiatives in educational institutions if successful.

In an annual letter to the University in February, the President of Princeton explained that the Department of Education closed the investigation as the Trump administration left office. The University President explained:

Our initiatives to fight systemic racism are part and parcel of that commitment—an effort to go above and beyond what the law requires, as all of us must do if we are to realize our aspirations at this University and in this country.

The Biden OCR’s closure of the Princeton complaint is yet another example of how things have drastically changed in the world of education regulation under the Biden administration, even in just a few short weeks. We can only expect to continue to see similar shifts with respect to diversity, equity, and inclusion going forward.

What are the Practical Considerations for Educational Institutions?

As with the Biden order on LGBTQ rights under federal civil rights laws that we discussed in part one of this series, we may see guidance from the ED department regarding DEI initiatives in the near future. We assume this push will come after an effort to alter the structure of Title IX, a change that we are all eagerly awaiting. Schools, colleges, and universities should assume, however, that even if we do not receive DEI guidance their actions with respect to DEI will no longer be at risk of OCR scrutiny.

Troublingly, however, the Trump administration’s actions with respect to DEI initiatives may have opened a can of worms that will be more difficult for the Biden team to close. Specifically, as we described in our previous Franczek alert on the Trump equity order, the order raised the specter of private lawsuits from employees, parents, and students against certain types of trainings. For example, trainings that argue that virtually all White people contribute to racism, require participants to say they “benefit from racism,” or argue that “there is racism embedded in the belief that America is the land of opportunity or the belief that the most qualified person should receive a job” could be challenged by individuals claiming they create a hostile work evenironment under federal civil rights laws.

As of right now, there is no sign that these types of individual claims have any merit to them.

Since the Trump order came out, commentators have begun to suggest that educational institutions engaging in DEI trainings on such topics or requiring employees to don Black Lives Matter or rainbow flag symbols are “flirting with lawsuits.” As of right now, there is no sign that these types of claims have any merit to them. But educational institutions should be aware of the potential for risk and continue to work with legal counsel when designing DEI training and other equity-focused programs. For more information, contact me or any other attorney at the firm.