At the start of his second term as president, Donald Trump released an attack on DEI policies within the federal government.[1] Universities, law firms, and organizations alike scrambled to preserve their values without jeopardizing their public image or federal funding. Is it possible that diversity, equity, and inclusion (DEI) initiatives – encouraged by the Biden administration – are illegal? This is what the Trump administration claims in his executive orders.[2] The Trump administration relies upon Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), as grounds for ending DEI.[3] Recent rulings on Trump’s executive actions, however, call into question the legitimacy of this claim. Comparing recent decisions on recent Federal actions to the holding in SFFA suggests that DEI is not illegal.

Federal Education Funding and DEI

Executive Order 15141, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” impacted Federal funding made available to several schools, including the University of St. Thomas.[4] As a result, three membership organizations, of which the University of St. Thomas is a member of, sought a preliminary injunction against the Secretary of Education.[5] The plaintiffs argued that the cancellation of the federal funding violated the Due Process Clause and the Administrative Procedures Act (APA).[6] Their Due Process claim failed because the plaintiffs could not show that the termination of the funding was directly tied to Executive Order 15141.[7] Still, the court granted a preliminary injunction because changed “agency priorities” did not justify rescinding the grants without proper procedure.[8]

Federal funding for St. Thomas’s education programs was restored due to the procedural flaws of the grant’s revocation.[9] Although the case was not decided on Due Process grounds, it is important to note that the new priorities of the Department of Education contradict previous grant application requirements. President of the University of St. Thomas, Rob Vischer, explained that the grant applications required showing how the programs would contribute to diversity in the teaching profession.[10] In their 2022 and 2023 grant application notices, the Department of Education specifically listed an increase in educator diversity as priorities for all three of the disputed grants.[11] Although the Due Process claim failed, emphasizing workforce diversity was not illegal in the past. In fact, the previous administration encouraged it.

Differentiating Affirmative Action from DEI initiatives

In SFFA, the Supreme Court ruled that affirmative action in school admissions was unconstitutional. In the opinion, Chief Justice Roberts differentiates between the unconstitutional affirmative action and other permitted methods for considering race.[13] He explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[14] This description accurately reflects DEI initiatives. DEI initiatives, encouraged by the Biden administration at the time of the opinion, are not the same as affirmative action. The Court specifically noted how Harvard’s admissions program aimed to maintain diversity by having racial preferences in the admissions process.[15] Affirmative action, however, is not the same as stating diversity as a priority in grant applications. Instead, DEI initiatives are goals that do not explicitly discriminate against applicants in any manner like the processes described in SFFA.

Ultimately, the grants for the University of St. Thomas were restored on procedural grounds.[16] Still, other cases challenging Trump’s attacks on DEI have succeeded on constitutional merits. For example, Perkins Coie LLP succeeded in challenging Trump’s attack on the law firm for its DEI policies on the basis of the First Amendment[17] Harvard also succeeded in maintaining Federal funding after the Trump administration threated to take away funds due to the institution’s promotion of DEI. The court determined that the Trump administration’s actions were retaliation for protected speech.[19]

 

Diversity, Equity, and Inclusion is not Affirmative Action

 

Trump’s attacks on DEI have not yet been successful. Beyond violating the Administrative Procedures Act, attacks on DEI will likely face several other barriers. Because DEI is an abstract statement of values, rather than a definitive act, broad stroke claims that DEI is “illegal” affirmative action will likely not succeed. Instead, DEI promotion will probably be considered constitutionally protected speech. That does not stop the Trump administration from shaping grant funding applications and altering institutional values. Until then, DEI will remain safe from retaliation and funding already granted remains secure. Regardless of the social, racial, or economic impacts of DEI initiatives, DEI policies are not an “illegal” form of affirmative action.

[1] Exec. Order No. 14151, 90 Fed. Reg. 8339 (January 20, 2025); Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025); Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 6, 2025).

[2] Id.

[3] Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025).

[4] Gordon Severson, Dept. of Education cancels grant program, affecting 185 students at St. Thomas pursuing careers in special ed, Kare 11, https://www.kare11.com/article/news/local/dept-education-cancels-grant-program-st-thomas-special-ed/89-4e11c81d-1800-4d85-9b58-94f5b96206f3 (February 12, 2025, 9:32 PM).

[5] Am. Ass’n of Colleges for Teacher Educ. v. McMahon, 770 F. Supp. 3d 822 (D. Md. 2025).

[6] Id. at 840.

[7] Id.

[8] Id. at 855.

[9] Erin Alder, St. Thomas grants reinstated after Trump administration’s DEI cuts, Minn. Star Tribune (April 2, 2025, 2:15PM) https://www.startribune.com/st-thomas-grants-reinstated-after-trump-administrations-dei-cuts/601316701.

[10] Severson, supra note 4.

[11] Applications for New Awards; Teacher Quality Partnership Grant Program, 87 Fed. Reg. 10906-01 (February 25, 2022); Applications for New Awards; Supporting Effective Educator Development Program, 87 Fed. Reg. 19487-01 (April 4, 2022); Applications for New Awards; Teacher and School Leader Incentive Program, 88 Fed. Reg. 33592-02 (May 24, 2023).

[12] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).

[13] Id. at 230-1.

[14] Id. at 230.

[15] Id. at 222.

[16] Supra note 5, at 855.

[17] Perkins Coie LLP v. U.S. Dep’t of Justice, 783 F.Supp.3d 105 (D.C. Cir. 2025).

[18] President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 25-CV-10910-ADB, 2025 WL 2528380 (D. Mass. Sept. 3, 2025).

[19] Id. at *26.