Universities ought to be committed to protecting intellectual independence, including from governments. The strength of the university sector in the US means that provided they work together they ought to be able to resist presidential coercion, particularly where the coercion has no legal basis.

Which brings me to Donald Trump’s attack on diversity, equality and inclusion (DEI) polices. Shortly after returning to office, the president issued an executive order, “”, on which basis the US Department of Education advising them to end all DEI activity.

But while Trump may have coopted the language of illegality, his order does not alter the law, and its stipulations are arguably in contravention of that law. Indeed, the order does not even claim to change the law. Its opening paragraph clearly states that the president is bound by “longstanding Federal civil-rights laws” that protect individual Americans from discrimination “based on race, color, religion, sex or national origin”. And although Trump himself may not know it, the order issued in his name specifically acknowledges that, as president, he has “a solemn duty to ensure that these laws are enforced for the benefit of all Americans”.

Trump orders “all executive departments and agencies…to combat…private-sector DEI preferences, mandates, policies, programs, and activities”; the private sector is deemed to include universities. But Section 7 of the order makes it very clear that it “does not prevent” federally funded universities “from engaging in First Amendment-protected speech”. It actually protects academics teaching at federally funded universities, because the order makes it clear that it does not prohibit them “as part of a larger course of academic instruction” from “advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order”.

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This means that there is a lack of legal authority for universities to take any individual action to end existing programmes focused on diversity, equality and inclusion.

The US Department of Education “dear colleague” letter also lacks the legal authority to change this. Like the executive order, the letter admits this in its opening sentence: “Discrimination on the basis of race, color, or national origin is illegal and morally reprehensible”. The letter also advises universities that they should “ensure that their policies and actions comply with existing civil rights law” and admits that the executive order “does not have the force and effect of law and does not bind the public or create new legal standards”.

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The letter advises universities to “cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used…in an effort to circumvent prohibited uses of race” and gives them just 14 days to comply or risk having their federal funding withdrawn. But all of this is challengeable – and is being challenged – in court. That is why the implementation of the order a week before the compliance deadline.

In other words, although it has not been widely reported, the executive order does not require universities, departments or individual academics to alter the courses they teach or to censor classroom discussion about racism, sexism, gender identity or other issues the president dislikes. 

A group of distinguished American law academics have made these point in a , and have further argued that “common DEI initiatives are lawful under prevailing federal civil rights laws and Supreme Court precedent.”

Advice on equity, diversity and inclusion in higher education

And yet any number of universities have rushed to comply with Trump’s order by cancelling all their DEI schemes. As Johann Neem put it in ̽����Ƶ last week, they have rushed to obey in advance. Some have even signalled an intention to withdraw from contracts with overseas universities that rely on US federal funding where DEI plays a role in the project. Yet American courts are unlikely to approve of existing contracts being broken, particularly as they were lawful at the time they were signed, given the damage that would impose on US institutions’ reputations for honouring contracts, especially in the economically crucial areas of trade and finance.

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Presumably this rush to comply has occurred because, regardless of the law, universities fear that resistance will be met with some kind of punishment, financial or regulatory. But while universities are often in the early sights of dictatorial regimes, they can, by working cooperatively, be upholders of the rule of law and retain their autonomy. By presenting a united front, they can minimise the chances of being singled out for retaliation, as well as standing up for their autonomy and their principles. 

Although it may take some time to challenge the implementation of the executive orders in the courts, many such orders have been successfully challenged in the past. And the imposed by a federal judge on 21 February is a promising sign.

In the case of Trump’s executive order, it is the angels that are in the detail, not the devil.

Geraldine Van Bueren is professor emerita of law at Queen Mary University of London and a visiting fellow at Kellogg College, Oxford.

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