A Law Professor Explains Her Response to New DEI Rules

Donald Trump’s executive order targeting diversity, equity, and inclusion programs has raised many questions on college campuses.

Even though a federal judge temporarily blocked key aspects of it, schools still have to decide how to respond to it and the Department of Education’s February 14 Dear Colleague letter building on it. Their decisions could shape admissions, financial aid, campus life, and more.

A group of legal scholars argued in a recent memo to university leaders that “DEI issues remain legally defensible.” One of them was Osamudia James, a law professor at the University of North Carolina at Chapel Hill with expertise in civil rights and education law. The Assembly spoke to James about the memo, what she’s telling her colleagues, and how she understands the relevant laws.

This interview has been edited for length and clarity.

What advice do you have for faculty and administrators who are confused about all these DEI orders?

First of all, I acknowledge that it’s a deluge of information and a lot of very quick changes and turnarounds. And I think part of the strategy is in fact to overwhelm and confuse and chill behavior. 

One of the reasons I signed onto the memo was because I thought it was important to be clear about what executive orders and the Dear Colleague letters do and don’t say, and not have people in positions of power make rash decisions that are uninformed by what they’re actually being asked to do and what the law actually is.

So, slow down, realize all of the confusion this is intended to trade in, and then move forward with some measure of intentionality. 

There’s been a lot of preemptive compliance across the country. What’s your take on that?

After the Supreme Court decision in 2023, a lot of universities and other institutions reviewed their policies to make sure they did not conflict with the ruling, which was limited to the consideration of race in the context of admission. It would have been fine to review admissions policies. 

I do agree there are a lot of institutions that went further, as an attempt to ward off litigation or to get themselves off of the radar. Some of those moves I wouldn’t have advised at that time.

For example, many schools track demographic information to get a sense for what the demographics of this school are going to look like. That tracking can inform things like recruitment or outreach efforts. They can give an institution information about where resources will need to be in the upcoming year to support academic success. 

Some institutions are like, “Oh, we’re not even going to look at that anymore,” and the Supreme Court did not ask them to do that.

One of the questions we’ve heard from faculty after the UNC System issued its guidance on how to comply is whether they have to change requirements within a major. How would you respond?

I will say that the January 21 executive order said very clearly that it doesn’t have the force of law. It was also clear that it was not meant to impinge on academic freedom or freedom of expression.

It specifically said it did not apply to the teaching decisions of instructors and it did not mean to stop a university’s right to affirm its commitment to particular values.

My first reaction is that telling students that to be a well-rounded English literature major or to be a well-rounded historian, you have to understand texts from different time periods, different regions, different groups—that seems to me to be completely within a university’s right to push forward as a value. We want our graduates to be well rounded and have a great sense of the world and of the people around them.

It seems to me within an instructor’s right to insist that this is how we create a scholar. It’s part of that work. So I don’t think a requirement like that would run afoul of the January 21 executive order.

There’s also a lot of confusion and anxiety about the impact on cultural centers, student groups (like Black or LGBTQ student organizations), and identity-based housing. What’s your read on that?

The Supreme Court admission decision was very specific. It talked about the use of racial classification in the context of admission. And the court’s ruling was that using racial classification as a negative, to extend the promoted stereotype, was a violation of equal protection. 

Going forward, I would expect an institution would ensure that they are not using racial classifications to deny some students benefits or privileges or to bestow on other students benefits or privileges. But the reality is that I don’t know of schools that are doing this.

There’s nothing wrong with a housing program being like, “We are going to celebrate a particular culture,” or, “We want to engage in a particular historical period,” or, “We want to learn about the artistic contributions of a particular group as part of understanding our place in the world.” And as long as anyone is free to participate, I don’t see any problem with that.

In the examples that you gave, I could find no evidence that they were telling students you cannot participate because you are Black or white or Asian.

Again, the January 21 executive order was very clear that institutions have the right to engage in their own First Amendment protected speech. It did not apply to academic programs or classroom teaching. Institutions are allowed to use their own platform to promote their commitment to egalitarian values, to promote equity, to promote consideration of other groups.

I think that unfortunately some institutions are probably going to comprehensively stop research programs as an attempt to avoid being sued or enmeshed in litigation. I think that’s unfortunate, but it’s not required by either the Supreme Court ruling in 2023 or the executive order on January 21.

Another area of confusion is hiring practices and DEI training, which were called out specifically in the executive order. Does that seem like it will stand?

If a hiring practice is to exclude some candidates and include others on the basis of a protected identity, that cannot stand, and it never was going to stand.

If two applicants are similarly situated, and they’re exactly the same, maybe at some point you do think, “How does one person impact the demographic diversity of our institution?” But the court had not allowed that, and so I don’t think institutions were doing that.

Thinking about what our recruiting process looks like, do we adopt criteria that exclude people systematically, how do we make sure our own unconscious biases are not impacting our decision? Do we have some sort of academic requirement that necessarily means that only one demographic is ever going to be able to meet it based on things like former discrimination? Those things are not prohibited by the Constitution. They are not prohibited by statutory framework. 

I think the executive order would like to frame it as if just thinking about these things is a problem, but it’s not.

The executive order suggests that, based on the 2023 decision, adopting race-neutral policies as a pretext for actually targeting or actually using racial classifications is a problem. But the court itself has denied cert in cases in which that was the claim: They did not want to hear it. 

A bill was just filed in the General Assembly outlawing DEI in state and local government. Do you have any initial thoughts?

A bill like this gives itself a lot of qualifications, which ends up undoing the purpose of the bill. You know, “Nothing in this section shall be construed to conflict with relative anti-discrimination laws or Title IX of the Education Act or the Americans with Disabilities Act.” 

It’s really telling. The qualifications are meant to place the bill on stronger legal footing, but it also signals something about what the bill is trying to do. It is trying to target behavior that is actually not prohibited under the Constitution or any of our statutory framework, but it presents any consideration of diversity, any consideration of inclusion, as a problem.

You are meant to read between the lines. You’re looking at your program, and you’re thinking, “Gosh, people are really angry. They don’t want us to do these things. I’m not violating any federal law, but the thing I do has this name that they put here as a negative thing.”

They don’t want any state entity to promote or fund or implement workplace DEI initiatives. But a lot of workplace DEI initiatives are legal. If the institution is remediating their own discrimination, they are supposed to think about things like demographics, adopting policies that are going to make sure that women and minorities and poor people and people with disabilities and veterans have an opportunity to apply for your job. That is legitimate under Title VII.