Trump Abandons the Field on DEI

In February 2025, a newly installed Trump Department of Education (ED) issued a so-called Dear Colleague Letter. The letter put educational institutions on notice that ED intended to enforce the nation’s anti-discrimination laws, particularly those in Title VI of the Civil Rights Act and in the Constitution. It further specified that “discriminatory practices” would not be tolerated merely because they had been repackaged “under the banner of ‘diversity, equity, and inclusion’ (‘DEI’).”

Left-wing media pundits went berserk. They said the policy announcement was a “threat to equal opportunity,” called it an “extreme and implausible interpretation of the law governing diversity, equity, and inclusion,” and claimed it had “no obvious parallels in modern American history.”

The letter put institutions on notice that the Department of Education intended to enforce the nation’s anti-discrimination laws. Lawsuits ensued, including one by the National Education Association in March 2025 and another by the American Federation of Teachers the same month. New Hampshire District Court judge Landya McCafferty wasted no time in granting NEA’s preliminary injunction in April. Maryland District Court judge Stephanie Gallagher followed suit in August, vacating the letter in its entirety. On October 13 of last year, ED filed a notice of appeal in the Fourth Circuit. Then, in late January, ED unexpectedly dismissed its appeal. Why? Before we get to that, we must consider some background on the explosion of DEI on university campuses.

In late January, the Trump administration unexpectedly dismissed its appeal. Why? Students for Fair Admissions v. Harvard

Until about five years ago, universities referred to their lawless racial discrimination as “affirmative action.” Federal courts played along in cases such as Regents of the University of California v. Bakke and Grutter v. Bollinger. These decisions glossed over the racism of our nation’s universities by making the constitutional rights of white students contingent on the purpose of the discrimination against them (“attainment of a diverse student body … is a constitutionally permissible goal”) or the passage of time (“25 years from now, the use of racial preferences will no longer be necessary to further [the racial discrimination] approved today”).

But these opinions were not serious legal reasoning, and, by June 2023, even the Supreme Court had had enough. In Students for Fair Admissions v. Harvard (SFFA), a 6-3 decision, Chief Justice Roberts summarized what normal people had known since the Civil Rights era: “A student … must be treated … as an individual—not on the basis of race.” As such, racially discriminatory “admissions programs cannot be reconciled with the guarantees of” the Constitution. Roberts’s conclusion was also a logical extension of his pithy remark, penned 17 years earlier in Parents Involved in Community Schools v. Seattle, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Justice Thomas, as expected, stated the truth most plainly: “All forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.” This, ED knew, included DEI.

Even though these conclusions were obvious to most Americans, I predicted 15 months ago that “admissions offices [didn’t] care about the Supreme Court’s ruling in SFFA” and wouldn’t comply. Why? Because, “to left-wing political operatives, [laws] are mere words—parchment barriers that can be obeyed or ignored as circumstances warrant.” Once again, university administrators would turn to semantic trickery to conceal their racism. This proved correct, as Orwellian terminology such as “affirmative action” became the even more Orwellian “Diversity, Equity, and Inclusion” or DEI.

Though DEI dates back to the 1960s or earlier, widespread use of the terminology dates to about 2023. It’s not a coincidence that DEI programs (described as such) exploded on university campuses following SFFA. They were a convenient new cover for an old practice.

This time, however, Trump’s new Department of Education under Linda McMahon was on top of the ball. ED issued the Dear Colleague Letter (DCL) shortly after Trump’s inauguration. That missive immediately exposed DEI for what it was: a new mask cloaking ancient left-wing racism.

Litigation

Judge McCafferty enjoined ED from enforcing the DCL in April 2025, dismissing ED’s reliance on the Supreme Court’s SFFA ruling as “boilerplate,” which she was “not bound” to follow. Her opinion is full of sloppy reasoning and startling naiveté. For example, she observes that, prior to the DCL, ED “had not indicated a belief that [DEI] constituted unlawful discrimination.” Furthermore, in the wake of SFFA, ED issued a “questions-and-answers document in which it stated” that schools could “continue to articulate missions and goals tied to student body diversity.” Thus, McCafferty said, ED’s about-face must support the plaintiff’s claim, since it “force[d] schools to choose between [ED’s] 2023 guidance … or trying to adapt their conduct to the 2025 [DCL] requirements.” In other words, ED couldn’t object to racist DEI practices in 2025 because it hadn’t done so in 2023 under President Biden. Using this backward reasoning, neither Dred Scott nor Plessy v. Ferguson would have been overturned.

According to Judge McCafferty, ED couldn’t object to racist DEI practices in 2025 because it hadn’t done so in 2023 under President Biden. Then, in a section of her order arguing that the term “DEI” was “vague,” McCafferty imagined that a teacher “could seek to establish [DEI] by asking her students [to] sign a collective pledge to follow the ‘Golden Rule’.” This would result in an ED crackdown, McCafferty feared, because “it is more than arguable that such a practice would come within the ocean-wide definition of DEI.” At the risk of stating the obvious, this isn’t serious legal reasoning. Nobody believes DEI is code for “do unto others as you would have done unto you.”

McCafferty’s sloppy reasoning was matched by Judge Gallagher’s technical nitpicking. McCafferty’s sloppy reasoning was matched by Judge Gallagher’s technical nitpicking concerning the Administrative Procedure Act (APA), which has become a powerful end-run around the United States Constitution. It’s so powerful, in fact, that left-wing activists routinely cite the APA when the Constitution isn’t on their side. Here, the Equal Protection Clause, the Supreme Court, and Title VI of the Civil Rights Act all prohibit discrimination on the basis of race. Yet Gallagher vacated the DCL because ED didn’t follow the notice-and-comment rulemaking process of the APA. The absurdity of subordinating constitutional rights to inane statutory requirements was highlighted by another of Gallagher’s findings: The DCL had to be vacated because ED failed “to comply with, or even consider, the Paperwork Reduction Act.” Got that? Your constitutional rights can’t be enforced because the government wasted paper.

That said, it must be acknowledged that ED’s litigation tactics made the courts’ decisions easier. For example, both McCafferty and Gallagher had to find that the DCL was binding in order to strike it down under the APA. This put ED in the awkward position of arguing that the DCL wasn’t binding. While technically true (the DCL merely reminded educators of the requirements of the United States Constitution and Title VI of the Civil Rights Act, which are binding), the rhetorical effect of ED’s position was the equivalent of wading in the Rubicon without crossing it. That’s not a smart move: akin to saying “we didn’t really mean it” after striking the first blow.

But this is a small criticism. Judges McCafferty and Gallagher, like all activist judges, had made up their minds before the cases began. The fact remains that DEI is a thin veneer concealing invidious racial discrimination by the nation’s universities and other schooling institutions—discrimination that the Left has fully embraced and will not relinquish. That’s essentially what the DCL said. On this primary issue, ED was on solid ground. Given the Supreme Court’s ruling in SFFA, ED had reason to be confident in its ultimate success.

So why didn’t it appeal?

Political Appointees Versus the Deep State

The DCL was issued only weeks after Trump’s inauguration. Ordinarily, the short turnaround would suggest that it was rushed. Its contents suggest otherwise. It is a well-reasoned and thorough attempt to erase decades of misguided ED directives in favor of a plain understanding of the law: American educational institutions shall not discriminate on the basis of race using DEI or other theoretical underpinnings. These facts show that the DCL was not the product of career ED lawyers, who rarely act quickly and never against prevailing left-wing orthodoxies. Career ED lawyers were kept out of the loop until the DCL was ready to be released.

It stands to reason, then, that the DCL was the product of thoughtful work by one or more political appointees with experience handling civil-rights issues. These yeomen performed their work in relative secrecy, perhaps beginning shortly after Trump’s election. Moreover, these political appointees knew that the DCL would result in immediate litigation against ED, just as it did.

Once sued, ED staffed the case with trial attorneys who supported the mission. Those trial attorneys would have anticipated an adverse district-court ruling from the outset, steeling themselves for the inevitable appeals process. In short, everything about the DCL—its contents, release, and the ensuing district-court litigation—would have been handled by political appointees or trial attorneys hand-selected based upon their support for the cause.

When Judge Gallagher vacated the letter, career appellate lawyers at the Department of Justice had their chance to gum up the works. But then, when Gallagher vacated the DCL, career appellate lawyers at the Department of Justice had their chance to gum up the works. How? Executive-branch agencies such as ED cannot pursue a “discretionary appeal” without the approval of the solicitor general, whose office is part of the DOJ. That office is staffed by career lawyers. ED couldn’t appeal Gallagher’s ruling without their approval. But, as career lawyers, they shared the leftist plaintiffs’ sentiments and opposed the DCL’s conservative agenda.

When it comes to lawfare, the Left is the undisputed champion of the world. Admittedly, this is a partial explanation. The fact remains that the ultimate decision must have been made, or at least approved, by the solicitor general himself. Here, that meant John Sauer, nominated by Trump to be solicitor general in January 2025 and confirmed by the Senate in April. Sauer could have overruled the Deep State career lawyers and authorized ED’s appeal, but he didn’t. Which brings me to the second part of my explanation.

The Trump administration is mired in lawsuits. According to one tracker, approximately 655 cases challenging Trump’s executive actions have been filed since the president’s inauguration. Of those, plaintiffs have amassed a 49-5 win-loss record, 72 cases have been dismissed, and most of the balance are ongoing. DOJ is involved in most or all of them. Sauer would have known these facts. Furthermore, his office has only two dozen attorneys or so. Even with the help of other appellate attorneys—those at various federal agencies such as ED and the United States Attorneys’ Offices—the fact remains that the administration is legally outgunned and drowning in lawsuits. This is by design. When it comes to lawfare, the Left is the undisputed champion of the world.

I suspect that the above explains why the DCL was deep-sixed. Career lawyers at DOJ, miffed at being kept out of the loop when their approval wasn’t required, seized the opportunity to tank the DCL when it was. They may have advanced their agenda to Sauer with practical arguments about limited staffing and legal arguments about the notice-and-comment rulemaking requirements of the APA. If so, the practical arguments were valid. The legal ones, not so much. One does not restore constitutional rights with labyrinthine bureaucratic processes and interminable delays.

In the end, the administration abandoned a major battle to restore the constitutional rights of the majority of Americans harmed by DEI. As a result, universities won’t stop discriminating.

T.J. Harker is the general counsel of a Knoxville, Tennessee, company. Prior to that, he was an assistant United States attorney for the U.S. Department of Justice, where he investigated and tried national white-collar fraud and espionage matters. He writes at Amicus Republicae on Substack.