Cases & Developments

Executive Order “Restoring Equality of Opportunity and Meritocracy.” This Order seeks to eliminate disparate-impact liability, defining it as holding that “a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.” The Order also states that disparate-impact liability undermines national values and runs contrary to equal protection under the law and violates the Constitution. The Order seeks to revoke regulations that were promulgated under 42 U.S.C. 2000d-1, including: (1) the Presidential approval of July 25, 1966, of the Department of Justice Title VI regulations (31 Fed. Reg. 10269), as applied to 28 C.F.R. 42.104(b)(2) in full; and (2)  the Presidential approval of July 5, 1973, of the Department of Justice Title VI regulations (38 Fed. Reg. 17955, FR Doc. 73-13407), as applied to the words “or effect” in both places they appear in 28 C.F.R. 42.104(b)(3), and as applied to 28 C.F.R. 42.104(b)(6)(ii) and 28 C.F.R. 42.104(c)(2) in full. The Order requires the Attorney General to initiate appropriate action to repeal or amend the implementing regulations for Title VI for all agencies to the extent they contemplate disparate-impact liability, and in coordination with the heads of all other agencies, report to the President all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law; and other laws or decisions, including at the State level, that impose disparate impact liability and any appropriate measures to address any constitutional or other legal infirmities. Finally, the Order requires the Attorney General and the Chair of the Equal Employment Opportunity Commission to jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education. The White House also issued a Fact Sheet with the Order.

Executive Order “Preparing Americans for High-Paying Skilled Trade Jobs.” This Order seeks to fully equip the American worker to produce world-class products and implement world-leading technologies, as well as consolidate and streamline fragmented Federal workforce development programs “that are too disconnected from propelling workers into secure, well-paying, and high-need American jobs.” The Order requires the Secretaries of Labor, Commerce, and Education to review all Federal workforce development programs within 90 days of the date of the Order and develop a report setting forth strategies to help the American worker. The report must identify opportunities to integrate systems that realign resources to address critical workforce needs and in-demand skills of emerging industries and companies investing in the United States as determined, to the extent permissible by law, by prospective employers, including: administrative reforms to agency policies and programmatic requirements, process improvements to better the experience of program participants, and recommendations to further restructure and consolidate programs; Federal workforce development and education programs or related spending within those programs, that are ineffective or otherwise fail to achieve their desired outcomes; available statutory authorities to promote innovation and system integration in pursuit of better employment and earnings outcomes for program participants; opportunities to invest in the upskilling of incumbent workers to meet rapidly evolving skill demands of their industries, including the use of artificial intelligence in the workplace; strategies to identify alternative credentials and assessments to the four-year college degree that can be mapped to the specific skill needs of prospective employers; and efficiencies to streamline formation collection. Finally, the Order requires the Secretaries of Labor, Commerce, and Education to submit a plan to reach and surpass 1 million new active apprentices within 120 days of the date of the Order. The plan must identify (1) avenues to expand registered apprenticeships to new industries and occupations, including high-growth and emerging sectors; (2) measures to scale this proven model across the country, improve its efficiency, and provide consistent support to program participants; opportunities, including through the Perkins V Act and Federal student aid, to enhance connections between the education system and registered apprenticeships. The White House also issued a Fact Sheet with the Order.

Executive Order “White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities.” This Order seeks to support HBCUs (Historically Black Colleges and Universities). The Order establishes the White House Initiative on Historically Black Colleges and Universities led by an Executive Director to be designated by the President. The Initiative has the mission to  increase the private-sector role, including the role of private foundations in strengthening HBCUs; and enhance HBCUs’ capabilities by supporting implementation of the HBCU PARTNERS Act, collaborate with the Department of Agriculture and State governments to establish a framework for addressing barriers to accessing Federal funding to ensure that HBCUs receive the maximum funding to which they may be entitled, collaborate with agencies to improve the competitiveness of HBCUs for other sources of Federal research and development funding; and convene an annual White House Summit on HBCUs to address matters related to the Initiative’s missions and functions. The Order establishes in the Department of Education, the President’s Board of Advisors on Historically Black Colleges and Universities (Board). The Board shall include representatives of a variety of sectors, including philanthropy, education, business, finance, entrepreneurship, innovation, and private foundations, and current HBCU presidents. The Department of Education shall provide funding and administrative support for the Board. The Order revokes Executive Order 14041 of September 3, 2021 (White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity Through Historically Black Colleges and Universities) and requires that within 14 days of the date of the order, the Administrator of the Environmental Protection Agency shall terminate the Historically Black Colleges and Universities and Minority Serving Institutions Advisory Council. The White House also issued a Fact Sheet with the Order. 

The American Association of Colleges and Universities (AAC&U) organized a statement that has been signed by more than 500 academic leaders denouncing the Trump Administration for what it refers to as “unprecedented government overreach and political interference” and “coercive use of public research funding” in higher education. It states that the “price of abridging the defining freedoms of American higher education will be paid by students and society,” and concludes by calling for constructive engagement that improves institutions and “serves [the] republic.”