Decades of higher-ed hiring and employment practices aimed at avoiding discrimination could be upended after President Trump late Tuesday rescinded the Equal Employment Opportunity order signed in 1965 by President Lyndon B. Johnson.
The order applies to federal contractors and likely includes the majority of colleges that receive federal financial aid or other federal funding. It was the latest indication that the Trump administration is determined to eliminate diversity, equity, and inclusion and affirmative-action practices not only across the federal government, but higher education, as well.
The president’s action also takes aim at private colleges with DEI commitments. It orders all federal agencies to identify “the most egregious and discriminatory DEI practitioners” in their jurisdiction, including higher-education institutions with endowments of $1 billion or more. Each agency is ordered to identify nine potential cases that could be targets of civil-compliance investigations. The goal, the order states, was to “encourage the private sector to end illegal discrimination and preferences, including DEI.”
The now-revoked 1965 measure signed by LBJ had required federal contractors to “formulate affirmative action plans, develop plans to identify job groups where there are underrepresented groups, and come up with plans to address that underrepresentation in ways that are consistent with Title VII,” the federal law banning race, sex, and other forms of discrimination, said Scott Schneider, a prominent employment lawyer who advises colleges on discrimination and other matters.
“My two big takeaways are that all of the affirmative-action planning and report work being done on college campuses likely needs to stop under this executive order,” Schneider said. “Not only do colleges no longer have an obligation to pursue affirmative-action plans, I think this would prohibit it.”
An exception, he said, is likely to be colleges’ legal obligations toward disabled people and veterans.
The Equal Employment Opportunity order was issued a year after the Civil Rights Act of 1964 to address widespread practices in which women, people of color, and others were being shut out of jobs, promoted less often, and paid lower wages. Colleges responded with affirmative-action policies that sought to recruit more diverse applicants and ensure that employees were being treated equitably.
Higher education’s faculty, staff, and administrative ranks have diversified somewhat since then, but still don’t reflect the rapid changes in the nation’s diversifying student body. Recent challenges to affirmative action and DEI programs have complicated those efforts.
Colleges that haven’t already begun doing so will have to scrutinize all of their DEI programming to ensure that they are complying with federal antidiscrimination laws, Schneider said. He expects the ban to have a chilling effect, not only on public, but on private DEI plans.
When it comes to workplace discrimination, “The pendulum has swung so quickly so far,” Schneider said. Colleges that were enacting ambitious DEI plans eight to 10 years ago are looking at potentially dismantling them now, not only in red states, but blue states as well, he said. “If you had people who were looking for another reason to scale back” on their DEI commitments, Schneider said, this could be it.
The Chronicle has tracked 86 anti-DEI bills filed in 28 states and the District of Columbia since 2023. Fourteen have become law. Most of the legislative efforts have come from Republican lawmakers who were influenced by conservative think tanks and activists. But even in states where no such challenges exist, some colleges have preemptively ended preferential hiring methods and stopped using diversity statements in hiring and promotion.
There’s already this kind of fiction that if you’re Black or brown or a woman, you automatically get jobs. That’s of course not how things work.
It was not entirely clear on Wednesday how many colleges are impacted by the new order. The 1965 order that was rescinded didn’t apply to all colleges that accept financial aid or other federal money, said Natasha J. Baker, another well-known higher-education employment lawyer who’s said she’s been fielding nonstop calls since Trump’s executive order was announced. The 1965 order applies to the many colleges that have federal contracts for specific purposes, like construction, or provision of goods and services, she said. For those colleges — which Schneider said includes the vast majority of higher-education institutions — the impacts will be far-reaching.
The 1965 order set what Baker refers to as a floor for colleges’ responsibilities to ensure that employment practices are fair and equitable. Many of colleges’ DEI programs go beyond that, but when they’ve been pressured to dial back that work, there was always a minimum legal requirement they knew they had to comply with, Baker said.
“That floor,” Baker said, “is now gone.”
In deciding whether to continue with their DEI plans, colleges will have to consider their missions, as well as other factors, Baker said. “It’s no secret that a lot of higher-education institutions are under financial strain, and they’re going to have to decide what legal risks they’re willing to take on,” now that the risk of being sued is much higher, she said.
Supporters say DEI and affirmative-action programs are needed to address long-standing inequities that have put some groups at a disadvantage in higher education.
The order issued Wednesday states that “illegal” DEI policies “not only violate the text and spirit of our longstanding federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system.”
Antonio L. Ingram II, senior counsel at the Legal Defense Fund, finds that kind of language dangerous.
“There’s already this kind of fiction that if you’re Black or brown or a woman, you automatically get jobs. That’s of course not how things work,” he said. The order “perpetuates the idea that if you’re a woman or a person of color, you’re less qualified.” That’s the kind of thinking, Ingram added, that led to decades of discriminatory employment practices.
Paulette Granberry Russell, president of the National Association of Diversity Officers in Higher Education, worries that the order will lead more colleges to preemptively scale back their DEI commitments. “The higher-ed community should remain steadfast in its commitment to equal opportunity and equity,” she said.
As further evidence of his determination to get rid of DEI, the Trump administration this week also ordered that all employees of diversity, equity, and inclusion offices at federal agencies be placed on paid administrative leave by the end of the day Wednesday and eventually laid off.
Some of Trump’s barrage of executive orders, like the one banning birthright citizenship, can clearly be, and are being challenged in the courts. But because the 1965 Equal Employment Opportunity measure was issued as an executive order, another president can rescind it, Schneider said. Former President Ronald Reagan tried to do so, he added, but was thwarted by members of his own party. And during his first term in office, Trump didn’t touch it.
