A Lawyer Explains: "DEI" and Anti-Equity Policies in Schools

Transcript

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Alice : So states and school districts really do have every right to decide what they're going to teach in schools and the curriculum and courses they're going to offer. And they have every right to have centers for diversity, equity, and inclusion.

Natieka : Hello and welcome to School Me, the National Education Association's podcast dedicated to helping educators thrive at every stage of their careers. I'm your host, Natieka Samuels. Today we're tackling a topic [00:00:30] that's hitting classrooms across the country, the war against diversity, equity, and inclusion policies. The Trump administration is set on eradicating these important protections in schools and most facets of public life. So what does that mean for educators? What are your rights when it comes to discussing race, equity and history in your classroom? And how can schools continue to foster inclusive learning environments despite these restrictions? To help break this down, we're joined by Alice O'Brien, general counsel for the National Education [00:01:00] Association, who will walk us through the legal implications, risks, and opportunities for educators who want to push back. Thank you for joining us today, Alice.

Alice : Thanks for having me.

Natieka : You're quickly becoming the number one guest of this podcast.

Alice : Yay.

Natieka : Usually, when we're talking, something bad is going on, so I think we can just dive into it. But just before we do, talk to us a little bit about yourself and what you do here at NEA.

Alice : I'm Alice O'Brien. I'm the lawyer, so people come [00:01:30] to me when they want to hear bad news. So, thank you all for tuning in to hear what the lawyer has to say. I've been with NEA since 2010.

Natieka : So we're here today to talk about anti-equality policies and initiatives that are becoming rampant under the current administration, the common words that are used to describe this is DEI or diversity, equity and inclusion. So can we just start off by defining DEI [00:02:00] or diversity, equity and inclusion policies?

Alice : Yes. And I'm so glad you started there and also so appreciate how you framed them as equality initiative. So I think people can best understand what diversity, equity and inclusion programs are about by thinking about what the words mean. So diversity efforts recognize diversity and they take steps to ensure diversity. For example, you look at your eligibility conditions for [00:02:30] admission or for hiring for a particular job, and you see if they tend to exclude a lot of people who actually could do the job or a lot of students who would be exceptional students, and you take those down because you would like to have a fully diverse class and a diverse workforce. Inclusion programs make sure that education is inclusive. And that can mean everything from the curriculum [00:03:00] is inclusive, to the library. It includes books that reflect not just white people's stories, but stories about African-Americans, stories about LGBTQ people, stories about Native Americans. And that the educational program in the school or the college recognizes and celebrates people of different racial backgrounds, different national origins, different sexes.

Equity is just a word that is about treating people [00:03:30] fairly. So you'll hear people talk about pay equity for example, and that's the notion that people should be paid the same for doing the same job. Or health equity, which is the idea that when the federal government or any research institution is looking at health issues, they should pay attention to how differences in access to healthcare for different groups and how different sexes experience different health problems or the same health problems differently and should address those issues equitably.

So diversity, [00:04:00] equity and inclusion efforts includes a wide swath of different programs and initiatives that are designed to advance equal treatment. And the Trump administration since coming into office really has embarked on an all out war against what they term DEI, and they say these are anti-DEI executive orders, for example. We'll talk a little bit more about that in a minute. But it's probably more accurate to term them exactly [00:04:30] how you did at the beginning of this discussion, which is, they're really anti-equality orders. They're intended to set back efforts to make our country more representative, more fair for everyone.

Natieka : And what legal authority does the federal government have over anti-equality initiatives in public schools, and how has the administration already attempted to restrict those?

Alice : So the federal government has authority of course to enforce [00:05:00] the federal civil rights laws in schools and colleges. And the federal civil rights laws prohibit treating people differently based on their race, based on their national origin, based on their sex, gender identity or sexual orientation. And the Constitution does as well. But the federal government really doesn't have authority to go beyond that threshold to address what is taught in schools, the curriculum choices that are made about what is taught in schools, what books [00:05:30] are supposed to be on the library shelves, what educational programming is going to be offered. In fact, federal law prohibits the Department of Education specifically from doing that. And there's a lot of history here, but it shows up from the very first organization of the Department of Education in 1979. The department was prohibited from interfering with states and school districts' efforts to establish standards and curriculum [00:06:00] requirements. And those prohibitions have continued in every major federal education law, including most importantly for K through 12 education, the Elementary and Secondary Education Act.

So the federal government actually doesn't have authority to interfere with inclusive curriculum choices at all. Notwithstanding that the current administration has taken a number of actions that really attack equality [00:06:30] efforts, and some of those go directly to K through 12 schooling. Since coming into office, the president has moved very aggressively to use executive orders and to put people in place to enforce those executive orders and also to exit out of the federal workforce anyone who might be opposed to those orders in order to prohibit and investigate, punish people who are trying to advance equality, inclusive [00:07:00] education practices in schools in particular.

So the two executive orders that the president issued that go to this issue most directly are an executive order that prohibits so-called radical indoctrination in K through 12 schools. And it prohibits schools, among other things, from advancing gender ideology, which the president defines as any notion that sex [00:07:30] can encompass more than one's biological sex at conception. And I'm just going to pause there because that is not a coherent definition of anything. There is no biological sex at conception. Nobody has a sex at conception. But what the president is doing with that terminology is he's trying to radically shrink the protections of federal civil rights laws and trying to specifically exclude from those protections, protections against discrimination [00:08:00] based on gender identity and perhaps sexual orientation as well. The president doesn't have that authority. An executive order can state the president's views, it can tell the federal agencies what to do, but it can't rewrite federal law and it can't overturn Supreme Court precedents. And federal law and Supreme Court precedents are what determine the scope of the prohibitions in federal law against discrimination based on sex.

But nevertheless, he has issued that executive [00:08:30] order, and that executive order also prohibits teaching that the order defines as radical indoctrination, which is defined by way of a long laundry list of so-called divisive concepts, which are very vague and we've seen them before from the Trump administration in the first term when he issued an executive order that prohibited training of federal employees that included these divisive concepts. Now, [00:09:00] that first executive order was struck down as being impermissibly vague. That means people didn't understand what it meant, and you can't prohibit people from doing something if you don't tell them clearly what they can't do. And the current executive order runs into the same problem. Now, to enforce these executive orders. The Trump administration through the Department of Education has among other things issued a Dear Colleague letter, and the Dear Colleague letter has [00:09:30] threatened K through 12 schools and also colleges and universities with a potential loss of federal funding if they impermissibly advance DEI, which again is defined very vaguely.

Natieka : Yeah. And what I really don't like about what I've seen in a lot of the official correspondence that has come out is that these policies are being presented as a way to get back to some equality in their sense, I guess is [00:10:00] what they decide to say that these diversity things are actually doing what we've said is illegal, which is giving preferential treatment to minorities instead of just having everyone be equal when we understand through history that equity is not equality. Those two things are different and we have to treat that as such. But I think a lot of us can hear the dog whistle in there and understand what's going on. But I think everybody needs to be a little bit critical when they're reading [00:10:30] what the purpose of these things are while stated officially.

Alice : And part of the purpose is to be vague about what the federal government is telling people not to do in the hopes that people will self-censor and not teach in ways that are inclusive, that they'll look at their syllabi and scrub all the words related to diversity, equity and inclusion out of them. And unfortunately, we are hearing reports that that is happening and the federal government really [00:11:00] does not have authority to interfere with those choices. And so we really do call on universities and schools to stand up for the rights of their professors to teach the way they know is effective and engaging and also accurate, and to defend the rights of students to have a whole and comprehensive education that addresses the histories and lived experiences of all the students in the schools, not just some of the students in the schools.

Because we know that's [00:11:30] a kind of history that is most effective. It's the most effective in terms of preparing students to take their place in our multiracial democracy. We want kids to know that everyone's history is not the same, that there's people who are African-American in this country have had a very different set of experiences than people who are Irish-American. And that's important for kids to understand as they're growing up and taking their role as future leaders in our country.

Natieka : And we'll get into [00:12:00] some examples of that later. But for any of those schools in K through 12 or university level who do remain committed to continuing their equality programs or curriculum that includes the truth about history, for example, what legal protections do they have? And knowing that we've been moving at a really fast pace of intimidation for the last couple of months, [00:12:30] what are some of the challenges that they might face even despite those protections?

Alice : So states and school districts really do have every right to decide what they're going to teach in schools and the curriculum and courses they're going to offer. And they have every right to have centers for diversity, equity, and inclusion. Certainly, private universities have First Amendment rights to decide how they're going to teach. Faculty at the higher education level have First Amendment rights to teach [00:13:00] and frame their scholarship in the ways that they choose. And at the K through 12 level, educators don't generally have First Amendment rights in what they say in their classroom, but states and school districts do have the authority to decide what will be the content of education in their states. They have that right under the Constitution. The education project is reserved to the states under the 10th Amendment, and they have that right under federal [00:13:30] education law as well.

And so we do have a lot of states that have stood up in response to the attacks on equality by this administration and said, "Thank you very much, but we are going to continue to teach aligned with our state standards and teach in an inclusive way that addresses experiences of all the kids in our schools." So lots of states have done that. A number of school districts have done that too. And so that is a very good thing. And then NEA too [00:14:00] has joined with the ACLU to bring a lawsuit to challenge the Dear Colleague letter, to challenge the Department of Education's threat to withhold federal funding from states and from colleges that engage in whatever the administration defines in its vague way as impermissible DEI activities. And through that lawsuit, we are trying to get a ruling that the Dear Colleague letter itself is impermissibly [00:14:30] vague and that it infringes impermissibly on the First Amendment rights of higher education faculty and that it also infringes unlawfully on the rights of states and school districts to decide what they're going to teach and how they're going to teach it and what books are going to be in their libraries.

Natieka : So to put a finer point on it, can teachers and staff legally discuss issues of diversity, equity, and inclusion in their classrooms, [00:15:00] even if their district seeks to fall in line with the administration's orders and wants to formally ban equality programs?

Alice : I think even at the district level, if the district is saying, "We agree with the Dear Colleague letter and we're telling you all to comply with the Dear Colleague letter," there's still a problem that nobody really understands what they're supposed to do and not do in response to the Dear Colleague letter. [00:15:30] And so school districts really can't put educators in a position where they can't tell what they're not supposed to do. Are they not supposed to answer a kid's question about the racism that enabled the enslavement of African-Americans in this country, or Jim Crow? Are they not supposed to answer a question about the violence of the Ku Klux Klan and ending reconstruction in this country? And if educators can't know the answer to those [00:16:00] questions, then they do have a legal claim. And so we would urge them to contact NEA so that we can talk to them about that.

Educators also have First Amendment rights outside of school and can advocate for their school district to change its position, for their state to change its position. And lots of educators have done that. That kind of advocacy is most protected by the First Amendment if it's entirely outside of school. You don't generally have First [00:16:30] Amendment protections in school at all while you're doing your job if you're a K through 12 educator. But outside of school, when you're going to the state government and petitioning the state government around the standards for social studies, for example, you have very strong First Amendment protections. Or you're writing a letter to the editor about why the changes in the school are problematic and are hurting students. You do have First Amendment protections for that. So that is still an avenue [00:17:00] that's available.

Natieka : And recently the Trump administration created this End DEI Portal online, which essentially asked people to report educators for quote, unquote divisive ideologies and indoctrination. Though I think we would probably consider what they're describing as inclusive practices or inclusive curricula. And so a lot of educators are worried. I've seen this a lot in the comment section on NEA's Instagram for example, that a lot of [00:17:30] people are really worried, "What do we do about this form?" Because it could obviously be used maliciously to endanger their jobs. So what is this quote, unquote End DEI Portal, and what advice do we give to anyone who is worried about how this could be used?

Alice : So the End DEI Portal is this hotline that the Department of Education set up, and they set it up not to enforce the civil rights laws generally, but to enforce this administration's view [00:18:00] of what can and cannot be taught in the schools. The Department of Education doesn't have any purview over that, and the administration doesn't have any constitutional authority to create this vague threat hanging over everyone's head. So in the lawsuit that we talked about that NEA and the ACLU filed, we are seeking to have the portal taken down altogether. In the meantime, I think people should [00:18:30] understand that there have been similar types of tip lines put up in different states, and they largely have crashed and burned. They haven't been successful, they haven't resulted in any significant action against educators.

I understand why people are concerned, but the reality of it is educators are doing their jobs. Educators are doing their jobs. They're instructing students, aligned with state standards in ways that engage students [00:19:00] and prepare them to go out and succeed in the world. And people are not going to report their teachers for doing that. And so there was a lot of splash when the End DEI Portal came out, and I think the administration purposefully added to the fear by having Moms for Liberty, which is a very prominent anti-inclusive education group. Endorsed the portal when it first rolled out and tell people, "We should use this to show our [00:19:30] receipts about the betrayal of our children." I think the practical reality of it is that the portal is not going to have the effect that people are concerned about. And to the extent it does, that provides further grounds for the legal challenge to it.

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I think that a lot of people [00:20:00] will find that comforting. Not completely comforting, just a little bit of a relief. And I've actually seen a little bit of this fear in real life as well. I went to a conference recently and heard that many of the attendees who are educators were afraid to attend any of the sessions at this conference that could be interpreted as quote, unquote DEI related. So anything that was about inclusive education or LGBTQ plus students and how to protect them. So [00:20:30] can educators be penalized for attending sessions, courses and professional development that include inclusive practices, DEI, however we want to frame it?

Alice : I'll start with educators should never be penalized for seeking to improve their practice. When educators go and they seek out professional development opportunities so that they can better reach and engage students of different backgrounds in their classes and students of different gender identities in their classes and support [00:21:00] them better, why on earth would anyone penalize that? So that's number one. I know that's just a moral statement, not the legal statement. But the legal statement is educators are protected by tenure, educators who have served in a school district for any length of time. Teachers are generally protected by the tenure laws. And the tenure laws prohibit terminating a teacher taking disciplinary action against a teacher for impermissible reasons. And usually, the type of conduct for which [00:21:30] you can be terminated is, for example, in Tennessee, I know from a case that we had there, it was that you engaged in conduct that was abhorrent to the profession of teaching.

Going to a conference and learning how to teach inclusively is never going to meet that standard. And the federal government's attempt to strike fear in everyone's hearts that teaching inclusively somehow could trigger some action under federal law against your school district, [00:22:00] that is not going to bear out in practice at the end of the day. The federal government certainly can and should honestly withhold federal funding from school districts, from colleges that are actually discriminating against students based on their race, based on their national origin, based on their sex or a gender identity. But teaching inclusively doesn't do that. Teaching inclusively treats everyone the same, and it provides them with access to information and curriculum [00:22:30] that they otherwise would not have access to and supports they otherwise would not have access to. It doesn't discriminate against anyone. It actually improves the educational experience for everyone.

Natieka : Yeah. I think my worry with all of this is it seems there's an attempt to change what inclusive means or change what it means to treat everyone the same. So that could go in one direction for sure. And also, there's a concern that there's a lot of acting without being concerned with the [00:23:00] legality of things or the constitutionality of things. And we can see that in a lot of different facets of what's going on right now. So have there been any schools that have faced some sort of challenge or hardship based on these policies already? Even if we don't think that they would survive in court or hold in the long term, have there been some fear-based consequences put on schools already about this topic?

Alice : So the Dear Colleague letter [00:23:30] is really the first thought of the Trump administration at K through 12 schools on this, which is why we thought it was important to go to court and challenge it immediately. Since that Dear Colleague letter came out, the administration has announced some investigations of states who were supposedly acting in ways that are not in compliance with that letter. Those investigations so far have focused [00:24:00] on athletics largely, whether or not transgender girls can participate on teams consistent with their gender identity. Now on that issue, as we were talking about before, federal civil rights laws really do protect those girls and protect states decisions about their rights as well. And so I think we will see states and school districts that dig in on that issue going to court at the end of the day. And courts hopefully, at the end of the day, [00:24:30] siding with the states.

Natieka : So if a school or district removes books or bans discussion on race, gender, systemic inequality or anything like that, what legal recourse do educators or families have to push back against this?

Alice : So it's important to understand that educators have different rights than students and students' families in this circumstance. So educators have limited First Amendment rights in school in the K through 12 context. So if their [00:25:00] school district says, "You're not going to teach X," then you can't teach X without running into disciplinary issues with the school district. But for students, students have First Amendment rights. They have First Amendment right to information, they have state constitutional rights to an education. These are rights that are not well-defined, but they arguably do provide some protection to students when their school is censoring curriculum, [00:25:30] not providing them with critical information or with access to materials about the full sweep of US history or censoring certain viewpoints. And students have First Amendment rights in school itself to wear an armband or wear a button or wear a shirt expressing their views so long as their speech isn't disruptive of the school environment and so long as it complies with whatever neutral policies [00:26:00] the school has in place.

So the school may have policies like if you're going to have a student demonstration, it has to be here, it has to be in this place, it has to be at this time. Or the school may a nobody can wear a hats policy. And so it doesn't matter what kind of hat you have, you just can't wear a hat. A school can have those kinds of neutral rules, but otherwise, students have broader First Amendment protections at school, which they can use to protest those kinds of decisions. And of course, both educators and students outside of school, [00:26:30] like parents, have the broad protections that we all have as citizens to speak up about matters of public concern, to put our voices in the public square and say, "It's important for schools to prepare kids to grow up and live their lives in this world, and they need to know about the world in order to do that. And so our school should not be censoring the things that they learn about in school. It should be exposing them to different viewpoints. It should be exposing them in particular [00:27:00] to viewpoints and stories and histories of people they don't know," because they're going to meet people like that in their lives. And part of becoming an educated person is having an understanding and a familiarity with all of that history and all those experiences.

Natieka : Along those lines, what protections exist for students who already are in or want to form equality or diversity-related clubs, like a black student union or an LGBTQ plus group, [00:27:30] if they want to advocate for that inclusive curricula that they feel that they deserve or otherwise challenge policies that they see are discriminatory in their school?

Alice : I think the question here is, is a student group being formed as a student group with the support of the school? Are they meeting at school? Are they using school resources? I mean, the general rule about affinity groups, meaning groups that are organized around one particular group's experiences or one [00:28:00] particular group's interest in advocating for a particular issue is the school can provide support as long as it provides the same support for everyone and as long as people aren't excluded from any affinity group based on a particular protected characteristic. So you can have a black students group, if there was a black student's group activity and a white student wanted to come, you couldn't refuse that white student admission if it was using school resources. That's the bottom line rule. But [00:28:30] students can form private groups as well and decide for themselves how those private groups are going to be organized and supported. And in that situation, I think it's very different. School resources aren't involved, and so people have more freedom in terms of how they associate and how they choose to associate.

Natieka : And some of these policies that are anti-equality obviously have an effect on hiring practices and potentially training. So what should teachers, [00:29:00] educators, administrators know about the possible employment discrimination laws that are made a little murky in this context?

Alice : Yeah, I think it's a good question and one that people struggle with somewhat, but I think the basic rules are pretty clear. You can't make employment decisions based on a protected characteristic. So you can't hire someone because of their race or because of their sex. You can't give someone a preference in the hiring process because of their race or because [00:29:30] of their sex or because of their gender identity. But you can be intentional and conscious about what your hiring practices are. What is your candidate pool? Are you artificially constricting it in some way, in a way that favors one particular group over another particular group? So what's a good example of that? There are some law firms that only hire from the top five law schools or the top 10 law schools. Well, guess what? Those top five or top 10 law schools, their classes [00:30:00] historically over time have been predominantly white, male students. And that's changed over time and now those classes are more diverse. But that's an artificial constriction in terms of who you're even considering to get in the door, which limits who you're offering an opportunity too. And so eliminating that barrier increases the chances that you will have a diverse workforce.

Natieka : So that falls in line with a lot of what I think NEA has been working [00:30:30] on in terms of just expanding the pool of available educators of color to fairly compete with the other educators that are more commonly hired. So, good to know that that is still there for those who want to make the effort. Have there been any successful legal challenges to these anti-DEI policies at the federal or state level? I know that we have our lawsuit going on, and it hasn't been very long, but what is [00:31:00] the resistance looking like right now from a legal perspective?

Alice : So there are a lot of lawsuits against the Trump administration. Our lawsuit on the Dear Colleague letter was filed on March 5th, so not very long ago. And we moved for a preliminary injunction, meaning preliminary relief from the court. So there'll be briefing and argument in that case, but I would expect we would get a decision. We don't have a decision yet, maybe sometime in May. That would be a reasonable timeline. There are other organizations [00:31:30] too, that have filed similar challenges. And so all those are still pending. There have been no rulings in those. There was a challenge that was filed within the first week of the administration to the Trump administration's anti-equality orders that applied in the federal government and to the private sector. Those weren't directed particularly to K through 12 or higher ed, but they did have some implications for K through 12 and higher ed.

And those orders prohibited any equality work at [00:32:00] the federal government level. So everybody who was involved or suspected of being involved or had even gone to a training for inclusion or diversity or equity purposes was put out of work by the federal government. The federal government shut down all its offices that did advance those equality goals. And the federal government rescinded the 1965 executive order that said that people who contract with the [00:32:30] federal government have to certify that they comply with the civil rights laws. Took that one down, and instead put in its place a requirement that anyone seeking to do business with the federal government has to certify that they do not engage in any impermissible DEI. And again, the problem here is nobody knows what that means. What is impermissible DEI and what am I certifying to? And so a lawsuit was filed by people seeking to do business with the federal [00:33:00] government, people who had grants with the federal government challenging these prohibitions in the executive order as being impermissibly vague. And the district court agreed and said, "They're impermissibly vague. We don't know what people have to say that they're not doing in order to do business with the federal government. And that violates the constitution."

Now that case is going up to the Fourth Circuit, and the Fourth Circuit has temporarily stayed the injunction in that case. [00:33:30] But that's not a ruling on the merits, it's just a procedural step on the way up the court system. But that's a first ruling on the Trump executive orders, in particular, that was favorable. And there has been a lot of litigation as well, challenging the state-level laws prohibiting the instruction on divisive concepts in K through 12 schools and higher education. A number of states passed those in the wake of the first Trump administration [00:34:00] spurred on by the executive order that Trump issued at the end of his first tenure in office. And those laws have been challenged. In a number of places they've been struck down. NEA, again, with the ACLU challenged the law in New Hampshire, which was struck down as impermissibly vague. The Tennessee Education Association challenged the law in Tennessee on the ground that it was impermissibly vague. It was struck down as well. There have been challenges in Oklahoma that were successful, a [00:34:30] challenge in Florida in higher education that was successful.

So these broad and vague prohibitions against instruction that impermissibly advances diversity, equity or inclusion views or advances divisive concepts or recognizes divisive concepts in some way are very legally dicey and problematic. And there will be much more litigation to come on these, and I think more court rulings that hopefully will be favorable as well.

Natieka : So what [00:35:00] is the role of unions here? Or rather, how can members of ours use the power of their unions effectively in this case? So that's organizing through local advocacy groups or unions to push against these restrictions on equality initiatives. What power do the people have right now?

Alice : Exactly what you said. Organize, organize, organize. I mean, people have the right to stand up under [00:35:30] the First Amendment and say, "We want our schools to teach the full and complete history of the United States of America and of the whole world," that that's important for our children to learn how to grow up and be people in this world who are functional adults. And to organize to defeat political candidates who won't stand up for inclusive education and who think it's okay that rather than supporting our schools and giving them the resources that they need to do their jobs [00:36:00] and supporting educators and pay them a reasonable wage, they think that the appropriate thing to do is to censor and smear efforts to advance equality and to stoke fear among educators. Those people should not be in office, and people have the power to vote the out office, and we will have a lot of that power coming up in the midterm elections. And so that's an important opportunity.

And educators also should always be involved and aware [00:36:30] of any changes in the standards at their state level about what is taught in schools, because those standards really are the gold standard. They define what can be taught in K through 12 schools. And so making sure that those standards protect and promote inclusive education is really, really important. And educators can use their full sweep of First Amendment rights to engage in those processes to testify before the state commissions or State Department [00:37:00] of Education about what those standards should include and why it's important from an educator's perspective. There's no one more powerful as an advocate for public education than a public school educator. I think public school educators are trusted members of our communities, are recognized as education leaders, and there's nothing more powerful than the social studies teachers standing up and saying, "This is how I teach and this is why it's important, [00:37:30] and the state law needs to continue to support me teaching in this way."

Natieka : Great. Power to the people. Again, it's all we have to say. Thank you so much for joining us today, Alice. I think that this is going to be really helpful to a lot of people who are confused.

Alice : Great to be here.

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