At a Glance

• On January 21, 2025, President Donald Trump issued an Executive Order, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” revoking previous executive orders that promoted the use of affirmative action and diversity, equity and inclusion programs and policies.
• The Executive Order includes several provisions specifically applicable to institutions of higher education, including a directive to the Attorney General and Secretary of Education to jointly issue new guidance regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
• We review this Executive Order and other recent developments affecting higher education institutions below.

On January 21, 2025, President Trump issued an Executive Order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” In addition to affecting government programs, federal contractors and federal policies related to diversity, equity and inclusion (DEI) and affirmative action, the Executive Order (EO) has substantial implications for higher education institutions, particularly those receiving federal funding or participating in federal contracts.

Under the EO, federal contractors and grant recipients must now certify that they do not operate any DEI programs that violate applicable anti-discrimination laws. This certification will be considered material to the government's payment decisions and is subject to the False Claims Act. The certification requirements will be effective within 90 days of the EO (i.e., April 21). Accordingly, educational institutions that hold government contracts with federal agencies (e.g., providing research support, technical services, etc.) will be subject to the EO’s new restrictions on DEI programs and policies. Institutions should conduct a thorough review of any initiatives or programs that might be considered “DEI” policies — yet to be defined in detail — to ensure compliance with the new order.

The EO also directs each federal agency to “deter DEI programs or principles” by identifying potential targets for civil compliance investigations. Specifically, the EO encourages agencies to identify “institutions of higher education with endowments over 1 billion dollars” for investigations, alongside publicly traded corporations and large nonprofits. The EO does not, however, impact academic instruction, stating that the order “does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting” DEI practices.

The EO also directs the Attorney General and the Secretary of Education to jointly issue guidance to all institutions of higher education that receive federal grants or participate in the federal student loan assistance program under Title IV of the Higher Education Act, 20 U.S.C. 1070 et seq., regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (SFFA). This will essentially replace the previously guidance issued by ED and DOJ to educational institutions regarding compliance with the SFFA ruling. While the previous federal guidance (since removed from the Department of Education’s website) provided information about how schools could achieve and maintain diverse student bodies while complying with SFFA, the new guidance is likely to expand the effect of the SFFA decision beyond admissions.

Impact on Federal Student Aid Programs

While the EO does not specifically state that participation in the federal student aid programs under Title IV will be conditioned on eliminating DEI programs that violate anti-discrimination laws, it is possible that the Department may seek to do so in the coming months, or may attempt to use its enforcement authority to restrict such programs. In addition, it is possible that the Department may seek to pressure accreditors to remove any accreditation standards pertaining to DEI. Although considering race may violate federal law under Title VI and Title VII with respect to hiring, as well as the requirements set forth in the SFFA decision pertaining to admissions, programs and initiatives employed by educational institutions that support or promote diversity that do not discriminate have not previously been determined to violate any civil rights law.

Institutions of higher education should stay apprised of developments in this regard. For example, in support of Memo M-25-13, which has since been rescinded and stayed by multiple courts, the Office of Management and Budget instructed agencies to review most grant and loan programs, including the federal student loan programs, to determine if they “provide funding that is implicated by the directive to end discriminatory programs, including illegal DEI and [DEIA] mandates, policies, programs, preferences, and activities.”

This is rapidly evolving issue, and this and other executive orders are likely to be challenged in federal court. On February 3, a group of higher education professionals, restaurant workers and Baltimore public officials filed a lawsuit in the U.S. District Court for the District of Maryland, alleging that the EO violates the First Amendment, Fifth Amendment and the Constitution’s spending clause. Nonetheless, given the high level of uncertainty resulting from these orders, and their potential impact on institutions of higher education, we recommend that colleges and universities conduct a thorough review of any initiatives or programs that might be impacted by this and other executive orders or directives to properly assess their legal obligations.

Additional impacts of recent executive orders and agency guidance

Institutions of higher education will also be affected by several other executive orders and policy directives issued during the first week of the Trump administration.

• Initial Rescissions of Harmful Executive Orders and Actions (January 20, 2025): This executive order rescinds several Biden-era orders that provided targeted support for Hispanic-Serving Institutions and Tribal Colleges and Universities. Although Trump has retained the White House Initiative on Historically Black Colleges and Universities (HBCUs), wider DEI funding cuts could impact programs supporting underrepresented students.
• Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (January 20, 2025): This executive order directs the Department of Education to rescind guidance that extended Title IX protections to include gender identity. The change could significantly affect transgender students’ access to single-sex spaces and participation in athletics.
• U.S. Department of Education Actions to Eliminate DEI Initiatives (January 23, 2025): The Department of Education recently removed or archived hundreds of guidance documents, reports and training materials that included mentions of DEI from its external-facing communication channels. Further, the Department dissolved its Diversity & Inclusion Council, which had been established by President Barack Obama through Executive Order 13583 in August 2011. The Department also dissolved its Employee Engagement Diversity Equity Inclusion Accessibility Council within the Office for Civil Rights in an effort to comply with the DEI EO described here.

What’s Next?

Institutions of higher education should stay up to date on new guidance issued by the Department of Education and other federal agencies in the coming days. Particularly as additional executive orders and directives are issued, we are continuing to review the impact of changes on institutions of higher education, accreditation agencies, and other federal contractors more generally. We are available to answer any questions related to recent executive orders or other guidance issued by the administration in the coming weeks.