The Imminent Demise of DEI: Are the Obits Premature?
DEI —- Diversity, Equity and Inclusion —-was under attack even before Trump triumphed in November. His reelection was interpreted as a signal to corporations and colleges alike that it was now open season on DEI. Title IX, as it has been interpreted by the Department of Education since the Obama Administration, also is on the chopping block. Indeed, the entire DOE may be facing bureaucratic capital punishment.
It will be interesting to see how corporate America reacts to Trump’s reincarnation, where DEI is concerned. I am constantly amazed at the diversity that has entered into advertising in recent years. People of color and LGBTQ+ persons are present in online and TV ads with what seems to be ever-increasing frequency. But, meanwhile, some major corporations already have signaled a down-grading of DEI. Whether this trend will accelerate, and whether it will impact advertising policies are interesting issues to keep an eye on.
In my world —- higher education —- to quote Inside Higher Ed , “DEI bans flourished in 2024.” According to this well-informed higher-ed observer, “In 2024, three states—Alabama, Iowa and Utah—banned diversity, equity and inclusion offices at public universities, continuing a trend that kicked off in 2023 with Florida and Texas. Three more states prohibited colleges from requiring diversity statements in hiring and admissions: Idaho, Indiana and Kansas. And lawmakers in at least 10 other states proposed legislation related to DEI in higher education that didn’t make it into law.”
No doubt there has been, and yet will be, much hand-wringing over this. Let me say that my hands won’t be among those being wrung. Why not? I approach that question from the perspective of 40 years’ experience in higher ed, beginning with my undergraduate days at Franklin & Marshall. Admittedly, I have been a student, teacher and/or administrator at only six institutions out of thousands. But to the extent these six —-F&M, Kent State, Case Western Reserve, UT-Austin, Widener and Rider —-are representative, I can state with supreme confidence that DEI ever was, is now and always will be (you fellow Catholics out there may recognize this mantra in another context) in safe hands.
And, despite how ever many laws misguided legislators may pass, we are by and large smarter than them. Consider the case of UT-Austin. When the Supreme Court —-another bastion of crustacean conservatism—-gutted affirmative action in admissions, UT simply began admitting the top ten percent of high school graduates state wide. Problem solved. And, demonstrating that not all good deeds get punished, UT reaped a bonus. Inside Higher Ed again: “The University of Texas at Austin has rapidly become one of the most selective colleges in the country. That’s partly due to a 30-year-old state policy attracting national attention as an affirmative action alternative. But Texans say it’s no perfect model.” Well, what is perfect. “Good” is often the more realistic goal, and acceptable as such.
Similar solutions are already under discussion where DEI is concerned. For example, “Colleges have been criticized for admitting more students through early decision, which benefits wealthier applicants. Without affirmative action, it could be a boon for diversity as well—depending how colleges use it.” According to James Murphy, director of career pathways and post secondary policy at Education Reform Now, ““I started in the camp of, ‘Early decision is evil, we have to get rid of it.’ That it was no better—and some people would say it’s worse—than legacy [preferences]. But I don’t think we have enough data to accurately assess the cost and benefit of early decision. I think the only thing that’s clear is that it can be used for both good and bad.” “Christoph Guttentag, Duke’s dean of admissions, said he sees early decision as a key tool for building a class that’s diverse along multiple axes: socioeconomic, racial, geographic, even extracurricular. Admissions officers have more freedom to admit a virtuoso violinist or star basketball player early, he said, and the same goes for applicants from underserved communities who stand out despite lacking the resources of many of their peers.”
Bottom line, if my four decades of experience tell me anything, it is that most of higher education, quite frankly, had no need for a VP of DEI. Most such officers, I maintain, spend most of their time singing to the choir. If they are de jure eliminated from our campuses, most institutions’ DEI ethos will not alter one wit.
And if I may add a bit of a post script: Whether or not the Department of Education survives Trump II, Title IX is guaranteed to be a casualty. But not a fatality. Far from it.
In a nutshell, “Title IX is a landmark federal civil rights law in the United States that was enacted as part (Title IX) of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.” It’s original purpose was to give female students an equal opportunity to participate in high school and collegiate athletics. And, it has succeeded. “Title IX has had a significant impact on women's sports, increasing the number of female athletes at the high school and collegiate levels. It has also led to greater respect and recognition for women's athletic achievements,” according to an expert Title IX attorney.
Then along came the Obama Administration. With the best of intentions, it demanded that universities take the lead in eradicating sexual assault and harassment on our campuses. I have written elsewhere, and maintain, that this was a disaster. If you are among the institutions that have never been sued as a consequence of your adjudication of a Title IX case… bless your heart. My own Rider University was not so lucky. Adjudication of such cases places colleges squarely and uncomfortably on the horns of a dilemma. Decide in favor of the complainant alleging sexual assault, and you have little recourse short of expelling the the accused student. The incentive for that student to sue for defamation and sundry other torts is extremely high, given the stigma that attaches. Find for the accused and you have an equally good chance of being sued by the complainant. We got some relief during Trump I, when Betsy DeVos ‘s revised regs allowed (but didn’t mandate) a “clear weight of the evidence” standard of guilt in lieu of “more likely than not.” The right of cross examination —- as fundamental to judicial due process as any rule I can think of —-was also a significant improvement.
A much more significant improvement would be to return Title IX to its origins… ensuring that female athletes get a fair shake. Instead, the Biden DOE in issuing regulations earlier this year regarding transgender students, chose to kick the can down the road where transgender athletes are concerned. Nonetheless, the rule as released was soon dead in the water, torpedoed by a federal court. “As of November 25, 2024, pursuant to Federal court orders, the Department is currently enjoined from enforcing the 2024 Final Rule in the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming; the Department is also currently enjoined from enforcing the 2024 Final Rule at the schools on the list located https://www.ed.gov/media/document/list-of-schools-enjoined-2024-t9-rule.pdf. Per Court order, this list of schools may be supplemented in the future. The Final Rule and these resources do not currently apply in those states and schools. Pending further court orders, the Department’s Title IX Regulations, as amended in 2020 (2020 Title IX Final Rule) remain in effect in those states and schools.”
So… where is that can now? Briefly, in the hands of the states. And those hands have not been reluctant to take hold of the issue. As of 2023, “Twenty-one states ha[d] laws barring transgender youth-athletes from competing on public-school sports teams in accordance with their gender identity.” As for the federal DOE, there at this writing a notice of proposed rule making. One knowledgeable source has commented on it, “Allowing transgender women, who are biologically male, to compete in women’s sports will undermine the fairness that Title IX was designed to protect. Biological differences, such as muscle mass, bone density, and cardiovascular capacity, can provide a significant competitive edge, sidelining biological female athletes. Many female athletes rely on sports for scholarships and educational opportunities. The inclusion of transgender women in female sports categories reduce these opportunities, as transgender women dominate competitions and, consequently, the allocation of scholarships. In contact sports, the inclusion of transgender women will raise continuous safety issues. The physical advantages of biological males will continue to increase the risk of injury to female athletes, a concern that cannot be overlooked in the pursuit of inclusivity.” [Emphasis is mine.]
I think it’s safe to say the NPRM is a dead letter in light of Trump’s reemergence. I for one won’t mourn its demise. Indeed, it seems to me that, as I have emphasized in the quotation above, participation of trans athletes, who remain biologically male, perverts and subverts the very purpose for which Congress enacted Title IX more than half a century ago, a purpose which has been achieved and exceeded in the ensuing five decades.
At the end of the day, it’s my conclusion that:
—-Reports of DEI’s demise are premature;
—-We higher-ed professionals - faculty and administrators alike- have all the tools, as well as the will, needed to sustain diversity, equity and inclusion on our campuses, regardless of what our state legislators devise; and,
—- Title IX is a law with a limited, but highly commendable, mission that it has fulfilled and will continue to fulfill, provided the DOE stops hijacking it for purposes of the department’s own devising.
