April 2025

Face to Face: The Legal Challenges Facing Higher Ed

April 2, 2025   |   Alex Likowski

“Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” Those were the words of President John F. Kennedy in June 1963 speaking from the resolute desk live on radio and TV, framing civil rights as more than a legal issue, but a moral one.

Kennedy’s attempt to pass a bill ended in filibuster, but his assassination later that year helped open the door for his successor, President Lyndon Johnson, to successfully restart the effort and eventually sign the Civil Rights Act of 1964. Two sections of that are of particular interest today: Title VI, which prohibits discrimination on the basis of race and national origin — but not sex — in federally assisted programs, and Title VII, which protects equal employment opportunity for everyone. President Richard Nixon later signed into law the Education Amendment of 1972. That law included its own Title IX, which added a prohibition of discrimination on the basis of sex in educational institutions receiving federal money.

Like so many other issues in the law, though, discovering the contours of the Civil Rights Act hasn’t been a straight line. Federal court cases like Lau v. Nichols, Bakke v. Regents of University of California, Griggs v. Duke Power, and Bostock v. Clayton County sought to find the line between lawful and unlawful considerations of the prohibited factors — race, color, national origin, sex, and religion.

In 2025, since the inauguration of President Donald Trump, a succession of executive orders have changed the federal government’s stance on civil rights law enforcement, particularly with regard to higher education.

Just nine days into his administration, Trump issued this executive order: “Additional Measures to Combat Anti-Semitism.” In it, he directed the secretary of education to review all complaints of anti-Semitism filed in schools of all levels after the Oct. 7, 2023, attack on Israel, and directed the attorney general to take action under Title VI.

It wasn’t long before the administration declared that several dozen universities — including the University System of Maryland’s Towson University — were under investigation. At the top of the list was Columbia University, where the Department of Justice charged that Jewish students had suffered persistent harassment at the hands of pro-Palestinian protestors. A few weeks later, the administration applied sanctions, canceling some $400 million in Columbia’s federal grants and contracts. Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. said, “Instead of inspiring universal condemnation, the Oct. 7 holocaust triggered a global wave of anti-Semitism. Ivy League campuses became a greenhouse for poison.” 

Since then, under the supervision of a special administration joint task force, Columbia has made some changes, stiffening rules about protest locations, giving campus police more arrest powers, and making it easier to report harassment. A statement from HHS, the Department of Education, and the General Services Administration called those changes “a positive first step.” The statement also warned, “Other universities that are being investigated by the Task Force should expect the same level of scrutiny and swiftness of action if they don’t act to protect their students and stop anti-Semitic behavior on campus.”

Another significant shot across the bow of higher education was the Feb. 14 “Dear Colleague” letter issued by the Department of Education’s Office of Civil Rights (OCR). The letter alerted schools and universities to the new focus of the administration’s enforcement of Title VI. “In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students,” the letter reads. “Colleges, universities, and K-12 schools have routinely used race as a factor in admissions, financial aid, hiring, training, and other institutional programming. In a shameful echo of a darker period in this country’s history, many American schools and universities even encourage segregation by race at graduation ceremonies and in dormitories and other facilities.”

The Dear Colleague letter also cited another very significant Supreme Court ruling, 2023’s Students for Fair Admissions v. President and Fellows of Harvard College. That ruling outlawed the use of racial preferences in admissions unless they satisfy a compelling state interest. The OCR also said it views that decision very broadly to prohibit using race “in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.”

Last week saw perhaps the biggest shock of them all. The University of Michigan has spent $240 million in the last nine years building arguably the most robust diversity, equity, and inclusion program in academia. But on Thursday, President Santa Ono, PhD, declared the university would dismantle its diversity strategic plan, eliminate diversity statements in faculty hiring, annual reviews, and admissions, and begin a process of evaluating their web presence for compliance with federal executive orders and guidance.

On April 1, these and other legal challenges facing higher education were the subjects of discussion on Virtual Face to Face. Program host and University of Maryland, Baltimore President Bruce E. Jarrell, MD, FACS, spoke with University of Maryland Francis King Carey School of Law Dean and Professor Renée Hutchins Laurent, JD; Maryland Carey Law Professor Marley Weiss, JD; and Maryland Carey Law Assistant Professor Chris Mathis, JD. The program included questions from an audience of 500 UMB faculty, staff, and students.

You can watch the video of the discussion above.