DEI and Anti-Discrimination Compliance in Higher Education
February 17, 2026
MODERATOR
PANELISTS
Tres Cleveland
Co-Chair, Higher Education Practice
Birmingham/Washington, D.C.
Lorrie Hargrove Birmingham
Scott Goldschmidt Washington, D.C.
Brandt Hill
Birmingham
Stephanie Fredman
St. Louis
Christina Koehl
Dallas/Los Angeles
Leah Northener
Dallas
About Thompson Coburn LLP
•Full-service law firm with more than 475 attorneys with offices in Chicago, Los Angeles, St. Louis, Dallas, New York, Birmingham, and Washington, D.C.
•Higher education practice advises colleges and universities on regulatory compliance, mergers and acquisitions, corporate governance, operational matters, and litigation. We also provide tailored training to support their evolving needs.
Presentation Preamble
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Monthly Higher Education Litigation Summary
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DEI – Law and Landscape: EPC and Title VI
• Equal Protection Clause (EPC), 14th Amendment
• “No State ... shall deny to any person within its jurisdiction the equal protection of the laws.”
• EPC “requires equality of treatment ... without regard to race or color.”
• Applies to states, including public postsecondary institutions
• Title VI of the Civil Rights Act of 1964
• “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
• Applies to any recipient of federal funds, including both public and private institutions
• EPC and Title VI Interpreted Coextensively
• Supreme Court: “Discrimination that violates the Equal Protection Clause ... also constitutes a violation of Title VI.”
EPC and Title VI: Strict Scrutiny
• Strict Scrutiny for Racial Classifications
• Institutions cannot provide benefits based on race unless they meet “strict scrutiny”
• Must have compelling interest in racial classification that is narrowly tailored to pursue that interest
• Previously, Supreme Court found institutions may have a compelling interest in student body diversity,justifying use of race as “plus factor” in admissions decisions
• Students for Fair Admissions (2023)
• Supreme Court held that race cannot be “plus” or “negative” in admissions
• “Eliminating racial discrimination … means eliminating all of it”
Scope of Students for Fair Admissions
• Prohibits using race as a determining factor in admissions.
• Open questions as to when, if ever, race can be basis for in other areas of campus life:
• Affinity groups, private scholarships, academic support programs
• Biden Administration immediately said that SFFA is limited to admissions
• Trump Administration reads SFFA more broadly, with some support from courts:
• “SFFA concerned college admissions programs, but its reasoning is not limited to just those programs.” Ultima Servs. v. Dep't of Agric., 683 F.Supp.3d 745 (E.D. Tenn. 2023)
Executive Orders
Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, Executive Order of January 20, 2025, 90 Fed. Reg. 8339 (Jan. 29, 2025)
Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, Executive Order of January 21, 2025, 90 Fed. Reg. 8633 (Jan. 31, 2025)
DEI Executive Orders/The Big Three
The Termination Provision
•Orders agencies (including the Department of Education) to terminate “equity related” grants or contracts
The Certification Provision
•Requires the head of every agency (including the Secretary of Education) to include in every contract or grant award terms requiring the other contracting party to certify that it does not operate any programs promoting DEI that violate Federal antidiscrimination laws
The Enforcement Threat Provision
•Requires the Attorney General to submit a report containing recommendations for enforcing Federal civilrights laws, and requires the Department of Education to identify up to nine potential civil compliance investigations of higher education with endowments over $1 billion
DEI Dear Colleague Letter & FAQ
• On February 14, ED published a DCL to “clarify and reaffirm the nondiscrimination obligations of schools.”
• On February 28, ED released a Frequently Asked Questions document “intended to anticipate and answer questions that may be raised in response to the [DCL].”
• Challenges:
• Am. Federation of Teachers v. U.S. Dep’t of Ed., et al., No. 25-cv-00628 (D. Md.).
• National Education Assoc. v. U.S. Dep’t of Ed., No. 25-cv-91 (D. N.H.).
• NAACP v. U.S. Dep’t of Ed., et al., No. 25-cv-1120 (D.D.C.).
• Status: The Government withdrew its appeal as to the DCL, and thus DCL has been permanently vacated. The End DEI Portal is no longer online.
Employment Discrimination Framework
• Title VII of the Civil Rights Act of 1964
• “...DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” What You Should Know About DEI-Related Discrimination at Work | U.S. Equal Employment Opportunity Commission
• Ames v. Ohio Dept of Youth Services, 605 U.S. 303 (2025)
• “Reverse discrimination”
• No heightened standard
• Hostile Work Environment
• Diemert v. City of Seattle, 776 F. Supp. 3d 922 (W.D. Wash. 2025)
• Challenges workplace training programs that instruct on certain topics, including those that discuss race.
EEOC
& DOJ
• “...[N]o matter an employer’s motive, there is no ‘good,’ or even acceptable, race or sex discrimination.”
– EEOC Acting Chair
Andrea Lucas, EEOC and Justice Department Warn Against Unlawful DEI-Related Discrimination | U.S. Equal Employment Opportunity Commission
March 19, 2025 EEOC and DOJ Technical Guidance
• What To Do If You Experience Discrimination Related to DEI at Work
• Disparate Treatment; Limiting, Segregating, and Classifying; Harassment; Retaliation
• “Depending on the facts, DEI training may give rise to a colorable hostile work environment claim.”
• What You Should Know About DEI-Related Discrimination at Work
• Examples of practices that the EEOC believes to be “unlawful discrimination”
• Limiting membership in workplace groups
• Providing meeting space for employee-led clubs
• Separating employees for DEI or other training
• DEI training—highly dependent on content, application, context
• Access to leadership development programs
• Selecting diverse candidate slates or diverse hiring pools—intentionally
Fireside Chat Questions & Answers
Fireside Chat – Questions/Answers
• The Dear Colleague Letter has been enjoined, but the injunction as to the DEI executive orders has been vacated by the Fourth Circuit. Those decisions seem to be opposites, so what frameworks can campuses use to reassess those decisions and determine whether reinstating certain language or initiatives is appropriate?
• With the DCL letter gone, do I have arguments to demand a return of diversity programs?
Fireside Chat – Questions/Answers
• Many institutions are reevaluating long standing identity focused events and partnerships considering shifting federal guidance. How should campuses navigate these activities while staying aligned with current nondiscrimination expectations?
• From a campus perspective
• From an employment perspective
Fireside Chat – Questions/Answers
• Student Issues Lightening Round
• What scholarships that highlight students in various categories (women, students of color, etc.) are permissible?
• Can we still provide information about scholarships available only to students in various protected groups?
• How can colleges balance benefactor wishes for private scholarships, many of which make specific race- and gender-based awards, and colleges’ responsibilities under Title VI and IX?
• Can we still have women/girls in the trades events?
• Can we still partner with local Native American organizations?
• Should schools implement a policy where students have to use the restroom of their assigned sex according to their ID?
• How should institutions guide faculty in balancing academic freedom with evolving nondiscrimination expectations?
• How should campuses approach recognition, funding, and oversight of student organizations organized around identity under current federal and state requirements?
Fireside Chat – Questions/Answers
• Employee affinity groups organized around identity raise a distinct set of compliance questions. How are institutions approaching these groups within the current nondiscrimination landscape, and what considerations should guide their structure and support?
• Campuses are looking for clearer guardrails as they adjust policies and practices. Could you offer concrete examples of actions that would be clearly unlawful, those that fall into a higher risk or uncertain category, and those that are more likely to be compliant under current nondiscrimination standards?
Fireside Chat – Questions/Answers
• Compliance expectations are increasingly influencing how institutions work with outside vendors and service providers. How might evolving federal and state requirements shape contract terms—such as state mandated addenda?
• With the new ACTS reporting requirement in IPEDS, institutions are submitting more detailed admissions and enrollment data. Do you anticipate that federal or state enforcement agencies might use this expanded dataset to identify potential DEI related compliance risks, and how should campuses prepare for that possibility?
REGucation | TC’s Free Resources Platform
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DEI and Anti-Discrimination Compliance in Higher Education
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