#3 of 10: Is DEI still legal?

What is legal here feels murky to me. What is ethical does not.

The president issues an executive order. Or the assistant secretary of the Department of Education writes a “Dear Colleague letter” to schools. The media report the most extreme possible interpretations, which educators then frantically share across social platforms. Schools are left asking, “What happened? Is DEI even legal anymore?” Let’s look at the facts.

DEI is currently legal at the federal level. Executive orders are not law; they are signals of intent. To get presidential intent enshrined in law requires an act of Congress. Many of the current executive orders will never become laws proposed by Congress, because they are not primary concerns of the American people or their elected representatives.

To govern by executive order and “letter” requires that people be sufficiently intimidated by such orders and letters that they “comply in advance” regardless of what’s legal. If schools and businesses eliminate whatever they think the government means by “DEI” because of fear or confusion caused by executive orders, there will be no need to create laws that do so—because the dismantling of DEI would already have become a reality.

Workers for the National Park Service demonstrated what this looks like this week when they revised the website on the Underground Railroad, removing references to slavery as well as a picture of Harriet Tubman. According to the article by Swaine and Merrill in the Washington Post, “Staff members received only vague guidance and… the selections were made amid a “frenzy of fear,” at a time when thousands of federal workers were losing their jobs.” As one employee reported, “You draw as broad a brush as possible, because the consequences of missing something are a lot more severe than the consequences of doing too much.” This is what pre-emptive overcompliance looks like.

To force compliance, the executive branch has opted to enforce executive orders by threat, intimidation, and illegal actions. This includes withholding funding, starting with the largest and most prestigious universities, those that often set the tone for the rest of the country. But this too is illegal. Only Congress can apportion federal grants, and once money has been granted, it cannot simply be halted.

The federal instruction most threatening to K-12 schools came in the form of a “Dear Colleague” letter (issued February 14) from the Department of Education, saying that funding would be withheld from schools that practice DEI. Another letter, reminding schools to comply with the Supreme Court decision regarding college admissions (SFFA v. Harvard), was released April 3. Attorney General of New York, Letitia James, along with 14 other Attorneys General, issued their own letter in response to the February 14 letter, reminding educators that a letter from the Department of Education does not have the authority to make something illegal. James said in a statement:

“The administration cannot ban diversity, equity, inclusion, and accessibility efforts with a ‘Dear Colleague’ letter… Schools and educational institutions can rest assured that they are well within their legal rights to continue building inclusive learning environments for their students.”

To be sure, there is no shortage of laws against DEI throughout states with Republican controlled legislatures, laws that have been enacted at the state level over the past four years. People living in those states have already had to navigate restrictions on DEI, coupled with a maddening lack of clarity about what lawmakers intend to outlaw when they refer to “DEI.” Researchers with the NYU Institute of Human Development and Social Change including Mica Pollock and Hirokazu Yoshikawa released a White Paper on the impact of anti-DEI bans in Florida on students, teachers, and schools. For a stark warning on what happens in schools when educators attempt to understand vague and threatening DEI bans, read their work entitled the Limitation Effect. This research alone demonstrates why DEI should be upheld with integrity until and unless clear and unequivocal legislation tells us otherwise.

When the government blames DEI, what exactly is it referring to?

DEI has been blamed for the Baltimore bridge collapse, the wildfires in Los Angeles, the airplane-helicopter collision in DC, as well as many other calamities. At first, these bizarre allegations seemed laughable—the absurd culmination of an inflated smear campaign to put any and all thorny social questions under the heading of DEI (see my first two posts in this series for more on the origins of the anti-DEI campaign).

But the anti-DEI campaign has an insidious logic when you look more closely. In Baltimore, in fact, blaming DEI meant blaming the Governor, Wes Moore and Baltimore Mayor, Brandon Scott, both Black men. In LA during the time of the wildfires, the fire chief Kristin Crowley was a White lesbian woman. “DEI” has actually become the newest slur, suggesting that people to whom it is applied “Didn’t Earn It.” It’s not clear why DEI was blamed for the crash in DC; some speculate the president needed a way to distract from his recent cuts to the FAA 3 weeks into his presidency. He falsely claimed that people with disabilities were the reason for the crash.

Weeks later, when President Trump removed the Chairman of the Joint Chiefs of Staff, he said it was because Air Force General CQ Brown Jr., a Black man, was allegedly a DEI hire. A four star general, Brown has been described by colleagues as “a scholar and a warrior,” “willing to defend our democracy without flinching” with “an unflappable demeanor.” Defense Secretary Pete Hegseth said on the Shawn Ryan Show in November, "But any general that was involved -- general, admiral, whatever -- that was involved in any of the DEI woke s--- has got to go," he continued. "Either you're in for warfighting, and that's it. That's the only litmus test we care about." Lisa Franchetti, the Navy’s top admiral and a white woman, was also fired from the Joint Chiefs of Staff.

Trump says he wants to outlaw DEI, but his actions suggest that he wants to blame people of color, women, and LGBTQ people for the problems in the U.S., fire them, and replace them. While at first he appears to disregard anyone who is not a straight, White, Christian man, it needs to be said that there are many who fit this description who he would never tap.

Those appointed have one thing in common—they are loyal to his agenda, no matter how undemocratic or legally questionable. And most—including the new Chairman of the Joints Chiefs of Staff, Air Force Lt. Gen. Dan Caine—are underqualified. Dan Caine has “not served in any of the roles that nominees are legally required to have performed in order to be nominated,” according to Kim and Bowman of NPR.

It is, in fact, not legal to appoint a Chairman of the Joint Chiefs of Staff as underqualified as Lt. Gen. Dan Caine. Is it legal to fire someone for being Black, a woman, or gay? It is not.

The problem with asking whether DEI is still legal is that it requires two preconditions that we don’t currently have answers to.

First, asking whether DEI is still legal requires that we specify what is and is not DEI. The anti-DEI campaign has made clear that DEI is anything that the people opposing it say it is. The executive branch has demonstrated that DEI can include any person who is a person of color, a woman, or a member of the LGBTQ community. This does not provide sufficient clarity for schools and educators on how to comply with any orders regarding DEI. As of April 3^rd, the government gave K-12 schools 10 days to sign a certification against DEI, lest they violate federal law and subsequently lose their federal funding. But again, what would it mean for a school to certify that they do not engage in DEI? Aside from the Supreme Court case regarding college admissions (SFFA v. Harvard), there is no current federal law outlawing DEI.

Second, asking whether DEI is still legal requires clarity about the legality of the measures taken to outlaw it. If the president declares something illegal without going through Congress to create legislation, is it then illegal? If the president will simply defy the courts and break the law, justifying the firing of people by calling them “DEI hires,” we have to ask, “What is the state of the rule of law?”

For people who believe in the promise of democracy, this has become a challenging question. I want to continue to live in a democracy where people follow the rule of law and work through the mechanisms that exist to question and change unjust laws. In other words, despite all the chaos, it still matters to me what is legal and what is not because I believe the rule of law is a public good in a democratic society.

As I look around, I see law firms, universities, and businesses complying with unjust and unlawful orders that are not backed by rule of law. I see a president and his cabinet disobeying court orders and violating legal requirements for the fulfillment of key military positions. I also see people like Princeton University President, Chris Eisgruber, standing up against these illegal threats to defend academic freedom and freedom of speech.

What is legal here feels murky to me. What is ethical does not.

Perhaps the question we should ask is not: “Is DEI legal?”

Really the question is: “What is the ethical way to respond when the president declares something illegal through illegal means?”

#CourageIsContagious

This week, I honor two courageous leaders. I honor New York State Attorney General Letitia James for her ongoing commitment to upholding—and clarifying—the rule of law for the American people. She currently leads a coalition of 20 attorneys general who are suing the government to stop the dismantling of the Department of Education.

I honor President Eisgruber of Princeton University, who insists that due process must occur before the federal government removes funding from universities and schools. In a recent piece in the Atlantic he wrote, “The Trump administration’s recent attack on Columbia University puts [the contributions of higher education] at risk, presenting the greatest threat to American universities since the Red Scare of the 1950s. Every American should be concerned.” Here he is in an interview with The Daily.

Photo by Agata Samulska on Unsplash