A Trump administration proposal to require all federal funding recipients to certify they do not have unlawful DEI programs and practices would create significant uncertainty for higher education institutions’ efforts to comply with federal law, states a letter submitted Monday by ACE and other associations.The proposal by the General Services Administration (GSA) earlier this month is problematic, the associations say, because it is attempting to force compliance with legal interpretations of non-discrimination laws that have been advanced through executive orders and sub-regulatory guidance.
From both “a legal standpoint as well as an operational reality, institutions or any other entities should not be required to provide an additional certification that they are in compliance with an interpretation of law and may, in fact, contradict state and local law,” the association letter states.
Institutions can also submit their own comment letters to the GSA ahead of the March 30 deadline.
As Higher Ed Dive reported, the certification the GSA seeks to require would cover programs the Trump administration calls “discriminatory practices,” such as race-based scholarships or programs, “cultural competence” requirements, and “overcoming obstacles” narratives or “diversity statements.” Training programs that “create a hostile environment” would likewise be prohibited for entities that get federal funding.
However, the association letter notes in asking for the GSA to drop the proposed certification requirement, colleges and universities are subject to an array of state and local non-discrimination laws and must ensure that their institutional practices adhere to these legal requirements, as well.
Many of the examples and practices cited in the GSA guidance as justification for the proposed requirement “remain legally contested and can vary significantly across states,” the letter states. “While executive orders and sub-regulatory guidance help provide context and understanding for how the federal government may interpret the requirements of federal law, they do not supersede state and local law."