S1: Welcome in San Diego , it's Jade Hindman. On today's show , the Department of Education's deadline to end D-ii programs has surpassed. We'll talk about the legalities and the impact. This is KPBS Midday Edition connecting our communities through conversation. So the Trump administration is continuing its flurry of attacks on diversity , equity and inclusion , better known as D-ii. That includes an ultimatum issued by the Department of Education on February 14th , giving schools and universities two weeks to cancel their Dei programs or risk losing federal funding. That deadline passed on Friday. That same day , the Department of Education launched an end Dei portal where the public can submit complaints about Dei programs or practices at public K-12 schools. Well , last week I spoke with Ariella Gross , a professor of law and history at UCLA School of Law , for a legal analysis of the current situation at hand , specifically at California college campuses. She signed a legal memo with other law professors and experts arguing that Dei initiatives remain legally defensible. We started the conversation unpacking the February 14th Dear Colleague letter from the Department of Education , which included the deadline to cancel Dei programs. Here's our discussion.
S2: The Dear Colleague letter is not itself law , but it is offering an interpretation of law , including the recent Supreme Court case of students for Fair Admissions versus Harvard. And it's offering a very broad , and in our view , deeply incorrect interpretation of current law. Uh , it's telling universities and K through 12 schools that they have to end all of their , quote , equity related programming. Uh , it's they are suggesting that everything from dormitories that are open to all students but foreground one particular culture are illegal. They're suggesting , uh , that teaching that focuses on , for example , anti-Black racism may be , uh , run afoul of the law. They're arguing that it is illegal to credit in admissions or hiring an individual , talking about their personal experiences with , uh , bigotry or bias , for example. Uh , some of these things , like the last one , were specifically mentioned by the Supreme Court as things that are permissible to do. The court has always said , in fact , that things like diversity , equity and inclusion are laudable and worthy goals. They just can't be pursued , according to the court. They have to be pursued by race neutral means. They can't be pursued by classifying people according to race. This letter goes much further and says no , those are actually pernicious objectives , something we think most Americans disagree with and we certainly disagree with.
S1: So even though we have an idea of what kinds of programs the Department of Education may be seeking to challenge , the letter is still pretty vague.
S2: There is no legal definition of Di. And as we've seen , this administration has been using die as code often for people of color or for all women. Um , they have referred to the former vice president as a die higher. They blame die for plane crashes and the LA fires. And in this letter they sweep an equally broad brush. They even seem to suggest that the mere presence of , or hiring of people of color or women might be evidence that a school is doing some kind of inadmissible preference , as though we don't all belong here or get here on our own merit. So there is not , in fact , a clear legal definition of what Dei Die means , and at times they even use the broader language of equity related , uh , which seems to suggest that any time one teaches about equality or , you know , some of the human rights , that since the Declaration of Independence have been part of our pantheon , that you might be running afoul of their guidance.
S1: It's so vague that it's almost like a slur. Effectively , yes. Well , listen , you mentioned the recent Supreme Court case students for Fair Admissions v Harvard. You know , Trump is using that decision in that case to broaden his attacks on Dei. Talk a little bit more about that.
S2: So that was a decision that told universities that the practices they had been following of considering race or other aspects of a person's identity , but the case really focuses on race as one element of a holistic examination of the candidate that that was no longer permissible. So , uh , since the Bacchae case and in 1978 and and affirmed by the Supreme Court , uh , about ten years ago , uh , that had been permissible not in California , where we've been under proposition 209 , but in many states in the country. And and the students for Fair Admissions case overturned that form of affirmative action. And it said in admissions , we're applying strict scrutiny to any racial classification. That means you have to have a compelling government interest to Come are strong rule that you should never classify people by race. And they said that diversity is a is an important value , but it didn't rise to the level of a compelling government interest. What the Trump administration is doing is several things one. They are saying not only is it not a compelling government interest , but it's actually a pernicious , terrible form of discrimination to value diversity or inclusion. And we won't allow you or they're claiming they could not allow us to even apply completely neutral rules. If there was the possibility that there was a motivation of increasing diversity or equity or inclusion. So , for example , the letter mentions it would not be okay to stop requiring standardized testing. If you were doing that in the hope of increasing the diversity of your student body , that is clearly not the current law. Universities can decide we want to have standardized tests. We don't want to have standardized tests for any reason at all. The other thing is that students for fair admissions applied only to admissions , and this letter goes far beyond just admissions. And there's no suggestion that the court ever intended to go beyond the case of admissions practices.
S1:
S2: And I want to give you one example. I think I mentioned this idea , right , that , uh , if there's completely neutral practice , but it turns out , uh , To have been partially motivated by an interest in increasing diversity , that it could be a run afoul of their guidance. They also have suggested that you could use so-called disparate impact , uh , theory to find a policy unconstitutional , disparate impact theory , which started in the 1970s and is honestly been almost dead in anti-discrimination law. Said , hey , if there's a neutral rule , like , for example , requiring firefighters to be , you know , at least £180 , and that just happens to exclude most women , we should scrutinize that rule and see if there's a good reason for it. Or is it really just there to make sure that only man or firefighters , uh , that rule that we should scrutinize neutral laws that have a discriminatory impact. Um , it has been on its deathbed for the last few decades. Um , but the court wants to resurrect it in the exact opposite direction. Um , if you find that white people are so-called discriminated against , that is , if you find that there are , uh , is a more diverse student body , there must be something wrong. We need to take a closer look.
S1: You know , so Trump put out this executive order targeting Dei. Much of it was put on hold by a judge.
S2: What will happen in California ? Because , uh , California , because of proposition 209 , uh , has been following race neutral policies for many years now , for about 30 years. And that's true at the University of California. Um , and , uh , and it's certainly true in K through 12 education. So the University of California has said we're confident that our policies , uh , do not , you know , violate the law. So I'm hopeful that that , uh , our institutions will stay strong and we're confident in our interpretation of the law. That said , you know , we don't know what will happen if this ends up at the US Supreme Court. Uh , whether the conservative supermajority on the court will want to extend the students for Fair Admissions ruling. And there's some suggestion that part of , you know , what this administration is doing in a variety of areas is let's push the boundaries. We know we're pushing them way past current law , but well , throw the pasta against the wall and see what sticks. Maybe the Supreme Court will uphold some of it. And and that is a real risk.
S1: So this this loss of federal funds , you know , really could be devastating to so many schools and universities. You mentioned some of these programs on college campuses that could be cut.
S2: That's the research money that comes in from the National Science Foundation , National Institutes for health , etc. and that overhead rate. I mean , this sounds kind of arcane , but that is in fact most the majority of the budget for many universities. Um , so already universities are facing catastrophic cuts in their funding from the Trump administration. And I think that if if these stand , we're going to see , um , if not the death of higher education in America , really a devastating loss , as we'll see some colleges shut , we'll see mass layoffs. It's going to hit staff first , um , you know , and then faculty and students. And I think it's a tragedy. Um , and but I don't want to sound alarmist , but I think that's really where we are. And we're already seeing massive cuts in scientific research. Um , we're seeing universities , uh , shut down PhD admissions this year. My former employer , University of Southern California , just canceled all PhD admissions for next year. Universities are reeling.
S1: Well , professor , I mean , it seems to me that part of the attacks on Dei are rooted in these attempts to both erase history and re segregate institutions as a way to maintain a dying hierarchy.
S2: I , as a historian of , uh , the United States and particularly , uh , the history of race and slavery and the law , I have been writing about this effort to erase that history. It's terrifying to see the Concerted onslaught of legislation and now executive orders about not teaching us history , not having an educated citizenry , and the attack on Dei and the effort to associate all negative outcomes with something called Di is hard to interpret as anything other than , as you say , an attempt to re segregate our institutions , to bring back Jim Crow , to , uh , to return us to an imagined earlier age when when they say Make America Great Again , I'm not sure what year they want to send us back to , whether it's 1950 or 1850.
S3: Honestly , whom.
S1:
S2: I , you know , personally , never been a great fan of the term Dei. I feel like it's became a shorthand for a kind of corporate programming that wasn't super effective in reaching its goals. I love that at UCLA law school , we have a vice dean for community equality and justice. So I like that language. But that's beside the point because this isn't an attack on Dei. This is an attack on the goal of an integrated and just and more equal society. Mhm.
S3: Mhm.
S1: You know , how might this push back To a more integrated society threaten academic freedom.
S2: We are already seeing. I just saw , for example , a colleague of mine post that she , uh , has been asked , uh , by a program where she , she's a historian and she offers trainings , uh , for professionals talking about , uh , US history and professionalism and ethics. Uh , she used to talk about Mary McLeod Bethune , Woodrow Wilson and W.E.B. Du Bois , and she's just been told. Sorry , you can't , uh , we need to erase , you know , die from our programming. That means you can't talk about race or gender , and you can't talk about any women or black people. Would you be able to offer this training ? Talking only about white men ? I'm not kidding , actually. And and she said , no , I can't do this. I can't do this and just talk about even if I were just to talk about Woodrow Wilson , I talk about his history of segregating the federal government and the military. Um , so I can't teach us history without teaching about race or gender. So that is an absolute attack on our freedom to teach and our students freedom to learn. And it's an incredibly dangerous.
S1:
S2: it. It's so overwhelming , and I just urge all of my fellow citizens to keep our eye. Keep our eyes on the ball , not be unnecessarily afraid. That is , in universities for and in schools. We should stand strong in our own understanding and knowledge of the law , not be intimidated , not obey an advance , not accept what's coming and have each other's backs. I don't think this is going to work unless I don't think we're going to be able to fight off this assault on academic freedom if we don't all stand together. So that's my hope. I've been very encouraged to see the activity of Organizations like the American Association of University Professors , the unions on campus , the student organizations , um , getting involved. And I think we're going to need that throughout society to defend our institutions.
S1: That was my conversation with Ariella Gross , professor of law and history at UCLA School of Law. Thanks for joining us today. If you missed anything , you can download KPBS Midday Edition on all podcast apps. Don't forget to watch Evening Edition tonight at five for in-depth reporting on San Diego issues. I'm Jade Hindman. We'll talk again tomorrow. Have a great day , everyone.
