The U.S. General Services Administration is the latest federal agency to take direct aim at diversity, equity and inclusion efforts, proposing in January that all federal funding recipients — including colleges and universities — certify their compliance with the administration’s DEI-related executive orders and guidance.
The certification language lists potential violations as awarding race-based scholarships and using “overcoming obstacles” narratives or diversity statements in hiring.
Failure to sign the certification or comply with its requirements could lead to severe penalties, including the loss of all federal funding. As a result, a host of higher ed groups have urged GSA to rescind the proposal.
If finalized in its current form, however, the GSA plan is likely to draw legal challenges.
Institutions that didn’t comply with GSA’s certification requirement could risk expensive legal battles to defend their position, said Beth Akers, a senior fellow at the American Enterprise Institute, a conservative think tank.
In a case that preceded GSA’s proposed rules, Harvard University won back $2.2 billion in federal funding last September when a federal judge ruled that the Trump administration didn’t take the proper steps and violated the institution’s rights when freezing the money.
But, Akers said, “The vast majority of institutions don’t have that fiscal luxury. So there is potentially a bullying effect that has real implications for how institutions behave here because they just simply don’t have the means to go through a legal defense of their noncompliance.”
Jon Fansmith, the American Council on Education’s senior vice president for government relations and national engagement, expects challenges to come, though, because the implications of the anti-DEI efforts go beyond colleges and universities.
“There will be a lot of Fortune 500 companies, defense contractors, social service organizations that would be impacted by this as well, and given the very flimsy legal basis for requiring this, it will probably go to court relatively quickly,” he predicted.
Is GSA’s anti-DEI proposal on firm legal footing?
GSA said its proposal is meant to align with recent Trump administration executive orders and guidance.
One such sweeping piece of guidance came from the U.S. Department of Justice last year, saying that even “neutral criteria” — such as focusing on certain regions for recruiting efforts — could be deemed unlawful under Title VI if the DOJ determined colleges chose those areas because of their demographic composition. Title VI bars federally funded programs from discriminating based on race, color or national origin.
In comments on GSA’s proposal, 23 state attorneys general argued it would be “unconstitutionally coercive” by requiring funding recipients to comply with the administration’s “vague and contested interpretations of federal antidiscrimination law.”
Jeff Metzler is co-chair of the education practice group at Pillsbury Winthrop Shaw Pittman in New York City. Metzler told Higher Ed Dive there is a plausible legal argument behind GSA’s proposed rules if they were used to target “government contractors that are engaging in racially discriminatory activity.”
“Yes, absolutely, there’s a solid legal ground to rest on,” Metzler said. “Title VI prohibits racial discrimination by recipients of federal funds.”
Nonetheless, he said a good deal of uncertainty remains since the U.S. Supreme Court’s 2023 ruling that race-conscious admissions policies at Harvard and the University of North Carolina could not be squared with the 14th Amendment’s right to equal protection under the law.
To Adam Kissel, a visiting fellow at the conservative Heritage Foundation, there is no ambiguity at all. “The Supreme Court said ending discrimination means ending all of it. The way to stop discrimination is to stop discriminating.”
But Fansmith said that while the administration relies heavily on that Supreme Court decision rejecting the two universities’ race-conscious admissions programs, the ruling did not go nearly as far as the administration would suggest.
“Chief Justice Roberts’ majority opinion said the pursuit of diversity in higher education was ‘worthy’ and ‘commendable,’” Fansmith said. “The idea that schools and other entities in this country have legitimate reasons for wanting to promote diversity among their students, or among their workforce, is still very much protected by the law.”
Metzler agreed, saying the Supreme Court did not abandon the goal of diversity, which previous decisions had held to be a compelling government interest. But he also noted that Chief Justice Roberts wrote, “[W]hat cannot be done directly cannot be done indirectly,” suggesting universities cannot make an end-run around the opinion to apply race-conscious admissions policies.
GSA proposal threatens personal liability for college executives
What’s most concerning to higher ed groups, according to Fansmith, is that GSA’s certification requirement also could leave individuals who sign these agreements subject to personal liability.
Signatories could face civil and criminal penalties under the False Claims Act, which targets fraud against the federal government.
“The False Claims Act allows for the government to go after the individuals who signed the certification beyond just the organization itself, which I think really hints at their goal is not to actually enforce the law but to add fear and risk to this area,” said Fansmith.
He also called this a “really legally questionable interpretation” of federal antidiscrimination laws.
“They’re saying we won’t just deny you the ability to participate in federal programs or receive federal funding,” said Fansmith. “We’re going to go after your CEO or CFO or general counsel, whoever signs the form on your behalf personally and expose them to great risk.”
But addressing the potential for individual liability, Kissel countered, “If you sign a certification knowing that you are defrauding the federal government by lying about your policies and practices, you are liable for that lie.”
Previous challenges to anti-DEI orders and guidance have been mixed
Higher education groups have had some success in fighting the Trump administration’s anti-DEI efforts in court.
Last August, for instance, a federal judge struck down sweeping guidance from the U.S. Department of Education that threatened to pull federal funding from colleges and K-12 schools over DEI practices that the administration deemed unlawful.
However, the 4th U.S. Circuit Court of Appeals gave the administration a boost with its February ruling vacating a nationwide preliminary injunction against two anti-DEI executive orders.
The plaintiffs — which included the National Association of Diversity Officers in Higher Education — had contended the executive orders prohibited “illegal DEI” without defining what that meant. As a result, they claimed the orders would have a chilling effect on their First Amendment rights.
But Metzler suggested the appellate court left the door open for future legal challenges. “The court said we don’t know yet how they’re going to enforce it. That’s not sufficient for us to say this order is unlawful.”
Metzler noted, though, that the 4th Circuit said that if the administration enforced the executive orders in a way “that goes beyond what the law requires,” it would be “much more sympathetic to a challenge.”
A more recent March 26 executive order targeting federal contractors’ DEI efforts defines racially discriminatory activities as “disparate treatment based on race or ethnicity in the recruitment, employment (e.g. hiring, promotions), contracting (e.g. vendor agreements), program participation, or allocation or deployment of an entity’s resources.”
“On some level, that’s helpful because it provides some additional clarity beyond just ‘illegal DEI,’” said Metzler. “But it also increases the stakes because previously one could say I thought that our practices of having an employee resource group or a student affinity group was lawful under the Supreme Court’s definition.”
NADOHE and other higher education groups filed a lawsuit against that executive order in April.
Colleges could face challenges when state and federal laws conflict
Another legal issue raised by the GSA’s proposed certification requirement and other anti-DEI pronouncements is what happens when they conflict with state or local laws. Federal law typically supercedes any conflicting state or local requirements.
But for public universities that are entities of their state government, the path is murky, according to Fansmith.
“The idea they would somehow be able to ignore what the state requires of them because of a change in interpretation of what the federal government believes, it’s an incredibly difficult and impossible position to put these schools into,” he said.
Metzler cited one area in particular where conflicts could arise inside or outside academia. “A lot of states and municipalities require that agencies have programs for minority and women-owned businesses,” he said.
These programs may require states and municipalities to do a disparity study to determine if differences exist between the number of contracts going to minority or women-owned businesses versus other businesses in the area. Before the current Trump administration, Metzler said the federal government had a similar program.
The American Enterprise Institute’s Akers said she would prefer to see the administration be more “agnostic” about the sorts of DEI practices that happen on campus.
“What we’re seeing is the administration trying to achieve a higher ed sector that is sort of rebuilt in its image with its values,” Akers said. “That’s concerning in part because I don’t think that’s the federal role in higher education and, in part, because I wouldn’t want to see a Democratic president do the same thing when they were in office.”
