Before Donald Trump retook office, advocates of a more demographically diverse U.S. professoriate were already criticizing existing hiring efforts as inadequate. One late-2022 paper in Nature Human Behaviour noted that, at recent rates, “higher education will never achieve demographic parity among tenure-track faculty.”

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Given the current political situation—not just nationally, but also among the growing number of states with DEI and/or affirmative action restrictions—how can higher ed institutions continue to diversify their faculties?

“I think that’s the question of the day: What’s lawful, what’s legal, what might subject an institution to investigation by the investigatory arms of the federal government?” said Paulette Granberry Russell, president and chief executive officer of the National Association of Diversity Officers in Higher Education, which is among the organizations suing over Trump’s anti-DEI executive orders.

“Is it purposeful that this administration has chosen ambiguity?” Granberry Russell asked. “Or left [us] to guess what they intend by ‘illegal DEI’? Is diversifying our campuses on its face illegal DEI?”

So far, the administration has not clarified where the line is. On Feb. 14, the U.S. Education Department published a Dear Colleague letter declaring that the department interprets the Supreme Court’s 2023 decision banning race-conscious admissions as applicable to other areas of higher ed, including hiring, promotion and compensation. That letter is facing legal challenges. The department later released a frequently-asked-questions document further explaining its position, but that guidance didn’t discuss hiring practices.

In response to a request for an interview and written questions, Harrison Fields, special assistant to the president and principal deputy press secretary, wrote in an email to Inside Higher Ed, “President Trump is working to Make Higher Education Great Again by ending unchecked anti-Semitism and ensuring federal taxpayer dollars do not fund higher education institutions’ support for dangerous racial discrimination or racially motivated violence. Any institution violating Title VI is, by law, ineligible for federal funding.” (Title VI bans discrimination based on, among other things, shared ancestry, including antisemitism.)

Madi Biedermann, deputy assistant secretary for communications at the U.S. Education Department, told Inside Higher Ed, “It is illegal to make decisions on the basis of race.”

She said the department isn’t providing any additional guidance at this point beyond the text of the executive orders, the Dear Colleague letter, the FAQ, Title VI of the Civil Rights Act of 1964 and the 2023 Supreme Court ruling.

Also, in an FAQ titled “What You Should Know About DEI-Related Discrimination at Work,” the U.S. Equal Employment Opportunity Commission writes that, under Title VII of the Civil Rights Act, DEI “practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” In addition, it says that Title VII’s protections aren’t just for minority groups.

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Casting a Wide Net

While Granberry Russell of NADOHE criticized the Trump administration’s “ambiguity,” she said that actively seeking a diverse applicant pool still seems acceptable. In recruitment, she said, “you’re not making a decision; you’re just saying, ‘Apply for this position.’”

“There’s nothing, at least on its face, that would appear to prohibit recruitment efforts,” she said. (The Education Department has, however, targeted dozens of universities for allegedly supporting the PhD Project, which was accused of barring white or Asian prospective doctoral students from a recruitment conference.)

Kezar, at the University of Southern California, wrote in an email that while recruitment strategies still seem to be a viable way to attract diverse candidates, “some of the approaches that people have been relying on, they don’t feel comfortable with because they are being targeted.”

Granberry Russell echoed this concern, saying that, out of fear of investigations, “people are being very, very conservative in how they approach faculty searches.”

Denise Sekaquaptewa, director of the University of Michigan’s ADVANCE Program, a faculty diversity initiative, wrote in an email that “approaches which may still be viable” include disseminating job announcements “to outlets where [they] may reach a wide range of excellent candidates.”

Read the full article on Inside Higher Ed.