Since the passage of the Higher Education Act of 1965 and under the protections of the 14th Amendment, American universities have been legally required to provide equal access to all students, regardless of race, sex, age, disability, or religion. These institutions are meant to be merit-based and colorblind, evaluating individuals on their personal abilities rather than group identity.
University administrators, as public stewards of higher education, are likewise obligated to act impartially and avoid partisanship, ensuring that political ideology does not interfere with academic decision-making or campus operations.
Therefore, from a legal and policy-based perspective, the support of diversity and inclusion is not a Constitutional nor statutory violation of law, nor is it the point at issue in relation to the current debate that has arisen between liberal Democrats and conservative Republicans. But equity does violate the law.
There is a crucial distinction between equality and equity. Equality guarantees that all students are treated fairly and receive the same opportunities and services, allowing them to earn their degrees based on merit. Equity, by contrast, calls for unequal treatment—providing additional support to specific groups in response to perceived systemic disadvantages within American institutions.
The existence of systemic racial disparities is a matter of ongoing debate. Some argue these disparities warrant equity-based policies, while others contend that the Civil Rights Act of 1964 has effectively leveled the playing field in higher education over the past fifty years.
Regardless of where one stands, it is equality—not equity—that is enshrined in law. Equity clearly removes merit-based student performance by granting other students additional benefits or support based on group identity. Therefore, equity, as an academic policy, violates the Fifth and Fourteenth Amendments of the Constitution.
While some argue that systemic racism persists within the U.S. government and others contend that the system is fundamentally fair and balanced, this debate holds little weight in matters of constitutional law and established legal precedent. What the law mandates is equality—not equity—and therefore, equity has no place in academic policy, which, as previously noted, must remain impartial.
Should one theory prevail, it may eventually be codified through democratic processes and enacted into law. Until then, however, the administrative promotion of equity-based initiatives remains unlawful and stands in clear violation of the U.S. Constitution. The imposition of ideological orthodoxy within higher education threatens not only the principle of free inquiry but also the foundational guarantee of equal treatment under the law.
Consider the Civil Rights Movement challenging the established order during the 1960s. Had conservative orthodoxy taken hold of academia, then equal protection clauses would not have been codified into law by Congressional legislation. Furthermore, equity carries with it the concept of an “implicit bias,” which, according to the American Psychological Association (APA), “is a negative attitude, of which one is not consciously aware, against a specific social group.”
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It should give pause for thought that the APA, which is one of the leading associations tasked with defining what is mentally healthy and unhealthy, should advance a praxis that is based on a theory.
This same logical thought calculus also applies to students in higher education.
Students who are very young and vulnerable and who seek to express their own perspectives are told by an authority figure they trust, such as a professor, that they have an unconscious prejudice of which they are unaware and that not to acknowledge this bias is unhealthy and unethical.
Consider this being told to an international student with different cultural, religious, or political viewpoints. This, in many ways, is a form of cultural imperialism and mental colonialism and does not facilitate a positive cultural exchange but rather a resentment.
The application of equity policies stigmatizes or stereotypes any student who does not conform to this perspective, creating a sense of shame or guilt for not conforming.
Any non-conforming student who may hold a different perspective or viewpoint is often ostracized by their peers, given the silent treatment, and labeled as prejudiced or worse. This adversely affects their research and studies as well as their mental health. It also alienates students from their peers and leaves them bereft of educational mentors.
A professor is traditionally tasked with providing both sides of an argument to a student and then letting the student decide for themselves what they believe—they are not supposed to be told what to think but rather how to think.
Academia must be Janus-faced, meaning it must look both ways.
[RELATED: American Progressivism v. Racial Justice: A Collision Course]
The burning question here is what can be done in the legal and policy realm so that all staff, professors, and students feel included, respected, and treated equally regardless of who they are, where they are from, or what they believe.
The American Bar Association provides an approach that is reasoned, policy-based, and legally soluble.
Currently, the Trump administration has issued an Executive Order banning “diversity, equity, and inclusion” (DEI) and is threatening to cut off federal funding.
Because the current administration will be in power for the next four years and another Republican President may very well occupy the White House for another eight years, universities should take a strategic policy view that considers the long-term interest of the university and its students in relation to the circumstances at hand.
Even if a Democratic candidate becomes President following the Trump Administration, the constant shifting in university funding streams and the alteration of departmental policies will either force university leadership to craft reserve funds to provide monetary streams to ensure that DEI departmental programs are fully staffed and functioning or to lay off staff and then constantly rehire them. This will serve poorly for staff morale.
Altering the nomenclature of DEI to Equality, Participation, and Community would prove far more sagacious from a policy perspective. This would create a true sense of inclusivity, where everyone is welcomed as an academic community. This institutional rebranding would generate a meeting of the minds and cohesion as a community as opposed to segregated groups of victims and oppressors.
This will ensure that American higher education continues to be able to draw federal and state funds for students who need them the most regardless of how the political pendulum swings.
It will also provide a Constitutional Shield from any legal liabilities that might emerge from litigation from parties on both sides of the political divide and prevent adverse press coverage, which weakens institutional branding. It also prevents administrative leadership turnover due to any political crisis that may arise, providing the ability of a university president to carry out a long-term strategic vision.
This policy will also ensure that current DEI staff can remain in their positions. Furthermore, this policy stance will permit the advancement of current programs for gays, minorities, and immigrants while also assisting low-income, rural, and first-generation students.
After all, low incomes affect students across the diversity spectrum, and rural areas have the highest rates of abortion, divorce, drug addiction, and suicide rates in the nation, as well as lower literacy and less access to traditional brick and mortar schools.
Why should these students—especially given the mental health crisis affecting universities across the United States—not be included and supported?
Furthermore, the removal of anonymous reporting, bias response teams and diversity committees, which instill fear of retribution by colleagues and students suffering from threat and viewpoint prejudice – the fear of high performing individuals with different perspectives that may outpace them in the academic or professional fields – will ensure that universities remain legally complaint with a well-established departmental grievance process in place to remedy any concerns.
Lastly, all DEI and Critical Race Theory should not be practiced in the realm of administration but rather in the field of pedagogy in appropriate departments and disciplines, such as Sociology, where they can be taught as a course option for students who may be interested in studying these schools of thought.
The policy realm must be guided by the North Star of the United States Constitution and a university’s founding mission.
The impartial administration of equality-based policies will create a unity of purpose in the American University System where a true diversity of peoples, cultures, and viewpoints will all be included and where everyone will be treated fairly and impartially as colleagues and peers.
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