President Trump Issues New Executive Orders Impacting Higher Education
On April 23, President Trump signed seven executive orders,
with four directly impacting higher education; two of the four are very consequential.
Stricter Oversight of Accrediting Agencies and New Accreditation Outlines
The first order, Holding Accreditors Accountable for Unlawful Actions, aims to
enforce stricter oversight of accrediting agencies in higher education, particularly
targeting those that promote what the administration deems as unlawful discrimination
under the guise of diversity, equity and inclusion (DEI) initiatives. The order
makes it clear that accreditors found in violation of federal anti-discrimination
laws will risk losing federal recognition. While the order applies broadly, it
specifically targets accrediting bodies for law and medical schools, instructing
the Secretary of Education and the Attorney General to investigate and take action
against institutions or accrediting organizations that impose DEI-related requirements seen as unlawful.
The order empowers the Secretary of Education to use tools
such as denial, suspension or termination of recognition to hold accreditors accountable.
It explicitly names the American Bar Association’s Council of the Section of
Legal Education and Admissions to the Bar and the Liaison Committee on Medical
Education, as well as the Accreditation Council for Graduate Medical Education,
for special scrutiny. These bodies face possible investigations and possible loss
of federal approval if they are found to be enforcing accreditation standards
that the administration interprets as violating federal anti-discrimination laws.
Additionally, the order introduces a new framework, New
Principles of Student-Oriented Accreditation, that outlines criteria for how accreditation
should function moving forward. These criteria include promoting intellectual
diversity, prohibiting credential inflation that burdens students with additional
unnecessary costs and ensuring academic programs are free from unlawful discrimination
under the guise of accreditation standards. The Secretary of Education is directed
to recognize new accreditors to increase competition; encourage institutions to
focus on program-level student outcomes (without considering race, ethnicity or
sex); and streamline the process for institutions to switch accreditors. The order
also calls for updates to the Accreditation Handbook and the launch of an experimental
site to foster innovation and improve quality assurance mechanisms in higher education.
Eliminating the Use of Disparate-impact Liability Across Agencies
The second order, Restoring Equality of Opportunity and Meritocracy, aims to eliminate
the use of disparate-impact liability across federal agencies. This legal doctrine,
often used in civil rights enforcement, focuses on the effects of a policy rather
than its intent—holding that a seemingly neutral policy may still be discriminatory
if it disproportionately affects a protected group based on race, sex, religion
or other traits. However, under this executive order, the administration changes
its interpretation of the disparate-impact liability. Under this new interpretation,
the focus is not on the discriminatory outcome, but rather on whether the intent was discriminatory.
The executive order instructs all federal agencies to deprioritize
enforcement of regulations that involve disparate-impact liability. It directs
the Attorney General to re-evaluate ongoing investigations or cases involving
this legal theory for possible dismissal in accordance with the administration’s
new interpretation. Additionally, it mandates a review of federal civil rights
laws to ensure compliance with the order’s new policy direction and includes
a provision to assess whether any federal statutes preempt state laws that impose
disparate-impact liability. Overall, the executive order represents a broad policy
shift away from outcome-based civil rights enforcement toward a stricter focus on intentional discrimination.
The order also directs the Attorney General and the Equal Employment
Opportunity Commission (EEOC) to issue guidance for fair hiring practices that
do not rely on college degree requirements. While this guidance has not yet been
released, it signals an effort to encourage merit-based hiring that values experience
or skills over formal education credentials.
Finally,
executive orders cannot override or violate federal laws. Only Congress has the
power to create, amend or repeal federal laws. If an executive order contradicts
or violates the Constitution or federal laws, it can be struck down by the courts.
Because this executive order attempts to override settled interpretations of the
law, it will likely be challenged in court.
Orders Addressing HBCUs and Foreign Influence at American Universities
The remaining two orders of interest to the higher education community are the White House Initiative to Promote Excellence and Innovation at Historically
Black Colleges and Universities (HBCU) and the Transparency Regarding Foreign Influence at American Universities.
The HBCU executive order promotes aims to enhance the capacity of HBCUs to provide
high quality education and to foster innovation within these institutions. Among
other things, the order establishes a White House Initiative on HBCUs, housed
in the Executive Office of the President and establishes the President’s Board
of Advisors on HBCUs within ED, comprising leaders from philanthropy, education,
business, finance, entrepreneurship, innovation, private foundations and current HBCU presidents.
The Transparency executive order’s purpose is to “end the
secrecy surrounding foreign funds in American educational institutions, protect
the marketplace of ideas from propaganda sponsored by foreign governments, and
safeguard America’s students and research from foreign exploitation,” according to order.
This order reenforces the already required reporting requirements
of Section 117 of the Higher Education Act, which requires higher education institutions
to report any gifts received from and contracts with a foreign source that, alone
or combined, are valued at $250,000 or more in a calendar year. Universities must
submit these reports semiannually to ED.
