Why the Trump Administration’s Interpretation of DEI Is Wrong

April 24, 2025 was decision day for public schools across America. An April 3, 2025, memo bearing the seal of the U.S. Department of Education (“ED”) attempts to implement a DEI prohibition that the White House included in an Executive Order seeking to permanently close ED. The Executive Order (“EO”) requires the Secretary of ED to “ensure that the allocation of ED funds is subject to rigorous compliance with Federal Law and Administration Policy, including the requirement that any program or activity receiving Federal assistance terminate illegal discrimination obscured under the label ‘diversity, equity, and inclusion’ …”

The Executive Order Is Illegal

That EO is unclear and illegal on its face because: 

1. It fails to define DEI, making it unconstitutionally vague.
2. It does not state that the EO’s application relates to the money the Administration is trying to claw back. Congress allocates funds every October for the 12 months that follow. No law, especially not an EO, can cancel pre-existing allocations of funds without expressly saying that it has retroactive application. This EO doesn’t state that it is retroactive.
3. It requires compliance with “Administration Policy” but the agency has not gone through rulemaking. The Executive Branch cannot do rulemaking by EO. The agency, consistent with whatever rulemaking authority that has been delegated to it by Congress, must go through a rulemaking process to impose anti-DEI conditions on funding.

So, those are three problems concerning the legality of the EO that the April 3rd memo seeks to implement. But illegality is effectively waived if schools either want to rid themselves of DEI or are frightened enough to agree to the Administration’s terms rather than advance their rights.

Schools Are Entitled to Administrative Process

Administrative agencies like ED must follow administrative procedure. A federal law called the Administrative Procedure Act (the “APA”) sets forth the rules of engagement between agencies and the parties they regulate. Normally, after an informal agency process (such as the April 3 memo and any response or failure to respond to it), there’s a public hearing before ED’s Office of Hearings and Appeals (“OHA”). 

If a school loses all formal hearings and appeals at OHA, the school can appeal OHA’s Final Order to the Office of Administrative Law Judges (“ALJs”) within ED. ALJs are part of the Executive Branch, but they are supposed to be neutral. If they are not, then the school can appeal to the Judicial Branch. 

In this case, it isn’t even clear that ED can provide the administrative redress described above. The President is in the process of closing ED. Half of its employees have been laid off. It isn’t clear if the layoffs include hearing officers, ED-assigned legal staff, and other personnel necessary to carry out civil rights enforcement activity.

Trump’s Administration Is Lawless

During this period of dispute, a school normally would not be deprived of its funding. But in this case, based upon the Administration’s conduct in two high-profile immigration cases,* there’s a good chance that the only enforcement activity ED intends to undertake is the wrongful withholding of funding already allocated by Congress. Therefore, any school choosing to resist should line up alternative financing. A line of credit should suffice, since, ultimately, the resisting institution is likely to prevail in court. If that happens, they’ll receive the allocated funds later, with interest.

DEI Is Not Illegal

There is also a problem with the Administration’s underlying determination that DEI is illegal. The Administration relies on SFFA v. Harvard, a 2023 Supreme Court case. However, Harvard does not prohibit DEI programs or activities on campus. Rather, the case prohibits use of race as a factor in higher education admissions. Notably, the April 3rd memo is directed at K-12 schools. There’s no limit on the number of students who can be admitted to K-12 public schools. K-12 schooling is mandatory and available to all children.

Thus, by proclaiming that any DEI program or activity is illegal discrimination requiring forfeiture of federal funding, the EO attempts to make the law (a Congressional function), interpret the law (a judicial function), and enforce the law (a proper Executive function) in one fell swoop. It would be absolutely stunning if the Supreme Court were to allow the Executive Branch to entirely eradicate separation of powers simply because there’s public backlash against being inclusive.

Attacks on DEI Are Politically Motivated

The real issue here is one of politics and messaging. DEI has become the Administration’s whipping boy. They are using DEI and the fact that most Americans agree that our immigration system is broken as excuses to run roughshod over the Constitution.

To successfully combat lawlessness, opponents must first reshape public opinion. It must be drilled into the public psyche that this is a rogue, incompetent, and mean Administration. The flouting of Supreme Court orders is lawless. The exposure of national secrets on social media is incompetent. The reclassification of inclusiveness as racist exclusion is mean-spirited. Americans shouldn’t be forced to wait for the midterms to get it to stop.

*The Administration has not obeyed a unanimous US Supreme Court Order that it facilitate the return of a wrongfully deported man (Noem v. Abrego Garcia, 604 U.S. ___, (2025)), and a District Court Judge recently ruled that there is probable cause to find the Administration in criminal contempt for willful disobedience of his order that some due process be provided in advance of deportations ( J.G.G. v. Trump, Civil Action No. 25-766 (U.S. Dist. Ct. of  Washington, DC, Apr. 16, 2025).