Public advisory: The legality of federal executive orders and directives regarding programs designed to advance equal opportunity for all (March 19, 2025)

This Public Advisory supplements Formal Opinion 23-02, issued on Oct. 4, 2023.

Attorney General Phil Weiser issues this Public Advisory on the implications of recent actions by the federal government, including presidential executive orders and federal agency directives, regarding the efforts of public and private entities to identify and remedy barriers to equal opportunity and inclusion. These actions have been coupled with threatened terminations of funding, investigations, and prosecutions by federal agencies, and have led to confusion and uncertainty for public and private entities regarding efforts to ensure equal opportunity. This advisory summarizes current law and addresses questions with respect to the legality of these federal executive orders and directives.

Federal Executive Orders and Directives Regarding “Illegal DEI” Programs

Executive Orders.  Since January 20, 2025, the current federal Administration has issued numerous orders, directives, and communications threatening both public and private institutions with loss of funding, investigations, and enforcement actions if they engage in “illegal DEI.” See, e.g., Exec. Order No. 14,151, Ending Radical and Wasteful Government DEI Programs and Preferencing (PDF download), 90 Fed. Reg. 8339 (Jan. 29, 2025); Exec. Order No. 14,173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (PDF download), 90 Fed. Reg. 8633 (Jan. 31, 2025) (“Executive Orders”). These Executive Orders, among other things, (1) direct executive agencies to “terminate . . . ‘equity-related’ grants or contracts”; (2) require executive agencies to include a certification “in every contract or grant award” that the contractor and grantee do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws”; and (3) direct the U.S. Attorney General to “encourage the private sector to end illegal discrimination and preferences, including DEI” and to use “civil compliance investigations” to accomplish this goal.

U.S. Department of Education Communications.  On February 14, 2025, the U.S. Department of Education Office for Civil Rights (“OCR”) issued a public letter (“Dear Colleague Letter (PDF download)” or “Letter”) purporting to define “existing legal requirements under Title VI of the Civil Rights Act of 1964” and the scope of the U.S. Supreme Court’s 2023 decision in Students for Fair Admission v. Harvard (“SFFA”). Letter from Craig Trainor, Acting Assistant Sec’y for C.R., U.S. Dep’t of Educ. 1 (Feb. 14, 2025). The Letter implies that it may be unlawful for schools to consider the impact of policies and practices on students with diverse backgrounds, or to implement race-neutral policies in order to increase racial or other forms of diversity. The Letter also incorrectly asserts that “DEI programs” “frequently preference certain racial groups” and “stigmatize students who belong to particular racial groups based on crude racial stereotypes.” Id. at 3 Following issuance of the Letter, the Department of Education published “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act (PDF download).” U.S. Dep’t of Educ., Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act (Feb. 28, 2025).

Litigation Challenging Federal Actions. Multiple plaintiffs have sued numerous federal agencies to stop the implementation of the Executive Orders. On February 21, the federal district court in Maryland entered a preliminary injunction (PDF download), holding that the Executive Orders likely violate the First and Fifth Amendments to the U.S. Constitution because they abridge free speech and are unconstitutionally vague. Nat’l Ass’n of Diversity Officers In Higher Educ. v. Donald J. Trump, No. 1:25-cv-333-ABA, 2025 WL 750690 (D. Md. Mar. 10, 2025). The court ordered that the federal government may not rely on the Executive Orders to:

a. pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations (“Current Obligations”), or change the terms of any Current Obligation . . .;

b. require any grantee or contractor to make any “certification” or other representation . . .; or

c. bring any False Claims Act enforcement action, or other enforcement action . . . .

Id. at *5. On March 14, the United States Court of Appeals stayed this injunction (PDF download), pending expedited briefing on the merits. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Donald J. Trump, No. 25-1189, at 2–3 (4th Cir. Mar. 14, 2025). However, all members of the panel separately concurred to explain their understanding that the Executive Orders “only purport to direct executive policy and actors”—not to order any specific agency action. Id. at 5 n.2. Based on the panel’s understanding, federal agencies should not rely on the Executive Orders to take action against grantees, or other public and private institutions. Id. (Diaz, C.J., concurring) (“agency action that goes beyond the narrow scope set out in this motion could implicate Fifth Amendment vagueness concerns”); 7 (Harris, J., concurring) (“The Executive Orders do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.”).

Public Advisory

This Public Advisory is intended to provide general guidance and articulate relevant governing principles. To enable the public to assess specific programs and activities under threat, the Department of Law offers the following additional context.

The Executive Orders target “illegal DEI,” and then go on to claim that DEI is illegal—yet the Executive Orders do not define the term “DEI.” “Diversity, Equity & Inclusion” is a term used in recent years to describe a wide range of efforts in countless workplaces and schools—many undertaken over the course of more than 50 years—to foster equal opportunity and inclusion. Unless such actions violate the Constitution or other statutes or regulations, they are lawful. Examples of efforts that fall under this term include such activities as expanding pipelines to recruit talent, offering mentoring programs, providing resource groups—open to all employees—to support employees, and providing transparent and job-related criteria for hiring and promotions. Best practices such as these remain lawful.

The Executive Orders are also based on the fundamentally flawed premise that workplaces and schools are zero-sum:  i.e., if a woman, or a person of color, or an LGBTQ+ person is included and receives equal opportunities, it must be at the expense of another person. In the same way that high-functioning teams are stronger than the sum of their parts, equal opportunity and inclusion are broadly beneficial to effective teamwork and do not come at the expense of others. That is indeed why so many organizations and human resources professionals are interested in fostering inclusion and creating a more welcoming environment where diverse teams can work well together.

What is the Current Legal Status of Executive Orders 14,151 and 14,173?

Federal executive orders cannot alter existing laws. Under the Constitution, the president has the power and obligation to “take care that the laws be faithfully executed.” U.S. Const. art. II, § 3. The president may issue executive orders to the government to articulate the president’s priorities or direct specific actions in fulfilling that obligation. Such an executive order, however, cannot override or conflict with the Constitution, federal statutes enacted by Congress, regulations promulgated through rulemakings, or court decisions interpreting such laws or rules.

Can My Organization Continue Its Programs to Promote Equal Opportunity in the Workplace?

Yes. Longstanding laws permits organizations that seek to advance diverse and inclusive workplaces by removing barriers to equal opportunity may continue to do so, as long as they do not use quotas or otherwise deny employment opportunities based on protected characteristics such as race or gender. Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 257, codified at 42 U.S.C. § 2000e-2(j).

Are Programs to Promote Equal Opportunity in the Workplace Illegal Following the Supreme Court’s Decision in Students for Fair Admissions, Inc. v. Harvard College?

The Letter issued by the U.S. Department of Education claims that the Supreme Court’s Decision in Students for Fair Admissions, Inc. v. Harvard College, 600 U.S. 181 (2023), held that workplace programs to promote diversity and inclusion violate the Constitution. This is incorrect. In October 2023, the Colorado Attorney General issued Formal Opinion 23-02, which explained that employer programs to promote diversity and inclusion were not rendered unlawful by SFFA. Colo. Att’y Gen. Op. No. 23-02 (Oct. 4, 2023). The state of federal law on this topic has not changed since that Formal Opinion was issued.

Should My Organization Change the Names of Its Policies, Programs, or Officer Titles to Avoid Being Targeted or Risk Losing Federal Funds? 

We are aware that several federal agencies are relying on keyword searches of grant terms or grantee websites to identify and target programs or positions that appear to indicate topics related to diversity, equity, inclusion, or accessibility. This targeting is not rooted in the law and ignores the legal distinction of whether such programs or positions advance equal opportunity as opposed to denying equal opportunity in violation of the law.

Public and private organizations concerned about the risk of losing vital funding as a penalty for having lawful programs designed to achieve laudable goals should understand that a termination of funding may constitute an unlawful action by the federal government.

Should My Organization Cease Any Trainings with Respect to Diversity and Inclusion?

Workplace trainings on issues of diversity and inclusion vary widely and each should be evaluated on its own merits. Trainings on how to comply with equal opportunity law at school or work and training on best practices for inclusion are legal and advisable, as long they don’t involve decision-making based on protected class status. Such training also may be protected by the First Amendment.

Employers should ensure that they are supportive of all employees, regardless of their membership in a protected class, and should work to instill those values in a way that welcomes all employees. One way to do this is to ensure that language used is inclusive of all employees, and that employees who are in non-minority groups are able to access services and support and participate in programs available to other employees.

Are Employee Resource Groups (“ERGs”) still lawful?

Federal and state anti-discrimination laws prohibit employers from discriminating against employees in terms, condition, and privileges of employment because of their membership in a protected class. An ERG may be considered to be a privilege of employment; accordingly, federal and state law require that ERGs, if offered, be open to all employees, regardless of their membership in a protected class.

ERGs remain lawful so long as: (1) they are open to all employees, regardless of an employee’s membership in a protected class; (2) employees are not divided into groups based on protected characteristics during ERG activities; and (3) the employer does not draw distinctions based on protected classes when determining whether to allow an ERG to form.   

Questions Arising for Educational Institutions

Can institutions of higher education still include diversity as part of their missions? And may institutions of higher education still work to support efforts to achieve equitable outcomes in persistence and graduation of their students?

Nothing in SFFA or the Executive Orders challenges institutions’ ability to work to achieve diversity and equity, so long as the particular race-conscious admissions practices at issue in SFFA are not the tools through which they seek to achieve those goals. Institutions of higher education may continue to articulate missions and goals related to student body diversity and equitable outcomes for students and may use all legally permissible methods to achieve diversity and equity.

Can institutions of higher education consider race in admissions?

SFFA limited the ability of institutions of higher education to consider an applicant’s race in and of itself as a plus factor in deciding whether to admit the applicant.

The Court made clear, however, that “nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” SFFA, 600 U.S. at 230. As such, an institution may choose to advance its educational goals by using a holistic review in admissions considering factors such as cultural competencies, income level, first generation to attend college, neighborhood or community circumstances, disadvantages overcome, and the impact of an applicant’s particular experiences on their academic achievement and on perspectives they would bring to the school environment. Institutions may use admissions criteria that look beyond traditional measures such as grades to more holistic ones that allow for consideration of applicants’ life experiences more generally, including their experiences linked to their race and how those experiences shaped their lives and the unique contributions they can make to campus.

As stated in SFFA, educational institutions remain free to consider any individualized quality or characteristic of a student that bears on the institution’s admissions decision, provided that any benefit is tied to “that student’s unique ability to contribute to the university,” and that the student is “treated based on his or her experiences as an individual,” and “not on the basis of race.”  SFFA, 600 U.S. at 231.

What kind of data can institutions of higher education collect?

Institutions of higher education may continue to collect data regarding their student bodies, including race, ethnicity, and other aspects of identity. SFFA addressed the use of individual students’ race as a plus factor in admissions decisions—not collection of data on race for broader informational, research, and evaluation purposes. Accordingly, while such data collection may continue, under the Court’s decision, institutions may not provide an advantage to an individual applicant specifically on the basis of the data collected about their race, including how their race compares to the race of other students admitted thus far during a rolling admissions process.

How can institutions of higher education target outreach to potential applicants?

As part of a comprehensive approach to conducting outreach to potential applicants, institutions of higher education can make special efforts to reach particular groups. Institutions do not have to ignore race when identifying prospective students for outreach and recruitment programs, provided such programs do not preference targeted groups on the basis of racial status in and of itself and that all students have the same opportunity to apply and compete for admission.

For instance, campuses may work with community organizations serving particular groups to share information about the application process and attract applications from that population. Similarly, as long as programs are open to all participants, regardless of their race, institutions may offer outreach, information, and other programs that may, because of their content, be of particular interest to members of a particular group. For example, partnering with affinity groups associated with community-based organizations is one culturally sustaining approach often undertaken by institutions that seek to diversify their student bodies.

Additionally, institutions of higher education may continue to target outreach to potential applicants based on a wide range of characteristics, such as academic interests, geographic residency, financial means and socioeconomic status, family background, and parental education level.

Institutions of higher education may also engage in expanded outreach by increasing the number and types of high schools, organizations, and regions admissions officers visit during the recruiting season.

How can institutions of higher education build relationships with middle and high schools?

Institutions of higher education may engage in many policy and practice reforms to develop robust relationships with middle schools and high schools across their communities with particular emphasis on those schools with historically low college-going rates. Practices may include:

• Partnering with particular schools and/or community-based organizations to offer mentoring or other programming throughout the school year to enhance students’ academic exposure;
• Hosting or sponsoring college access programming;
• Hosting Admissions Days at regional high schools, inviting seniors and partnering with admissions counselors and financial aid advisors to complete admissions applications;
• Reaching out to area high schools and designating a high school staff person to recruit students from inside the high school as a “high school liaison” who meets with students individually, in small groups, and in large settings and assists students in filling out applications, visiting the institution of higher education, and looking at career options;
• Offering tours on campus for local high school students that include information sessions where students can complete applications on the spot; and
• Hosting “academic preview days” for local high school students focused on individual programs, where students are invited to visit campus for the day including campus tours, lunch with staff and faculty, and a current student panel focused on the particular program.

May Educational Institutions Use Non-Race Based Tools to Address Diversity and Equity Concerns?

The U.S. Department of Education’s Letter incorrectly claims that it would be unlawful for public colleges and universities to implement a race-neutral policy in order to increase racial or other forms of diversity. This is not rooted in the law. SFFA did not hold race-neutral policies unlawful. Rather, the U.S. Supreme Court has encouraged “draw[ing] on the most promising aspects of . . . race-neutral alternatives” to achieve “the diversity the [institution] seeks.” Grutter v. Bollinger, 539 U.S. 306, 339, 342 (2003).

Recently, federal courts reaffirmed that it is not unlawful for a school to implement race-neutral admissions practices in order to increase student body diversity. In 2023, following the SFFA decision, a federal appellate court upheld a temporary admissions plan for three selective high schools in Boston that was intended to and did result in an increase in racial, socioeconomic, and geographic diversity. Boston Parent Coalition for Acad. Excellence Corp. v. School Comm., 89 F.4th 46 (1st Cir. 2023). The temporary plan shifted admissions criteria from standardized test scores to grade point averages and student zip codes. The First Circuit held that the plan violated neither Title VI nor the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. In doing so, the First Circuit held that “[t]here is nothing constitutionally impermissible about a school district including racial diversity as a consideration and goal in the enactment of a facially neutral plan.” Id. at 62 The First Circuit found “no reason to conclude that [SFFA] changed the law governing the constitutionality of facially neutral, valid secondary education admissions policies under equal protection principles.” Id. at 61. Similarly, the Fourth Circuit upheld a selective enrollment plan in 2023 in which a school board explicitly held a “desire to … improve racial diversity and inclusion by way of race-neutral measures.” Coalition for TJ v. Fairfax County Sch. Bd., 68 F.4th 864, 885 (4th Cir. 2023). There, the Court noted that utilizing race-neutral measures to achieve increased diversity is “a practice that the Supreme Court has consistently declined to find constitutionally suspect.” Id. at 886 The U.S. Supreme Court denied certiorari in this case months later, letting the Fourth Circuit’s ruling stand.

Can K-12 schools continue programs aimed at ensuring that college and career programs are inclusive of all students, and that schools provide a safe and supportive environment?

Yes. Administrators, teachers, counselors, and staff at K-12 schools should be confident that they may continue to carry out the vitally important work of preparing all students for life after graduation and ensuring a safe and supportive school environment.

Other follow up

If you or your organization has had federal funding denied, paused, or frozen based on programs or activities seeking to improve diversity and inclusion in your organization, or if you have been threatened with a federal investigation or enforcement action based on such programs or activities, you may share that information with the Colorado Attorney General’s Office at (720) 508-6000 or, for English language, please visit the Colorado Attorney General’s Office contact page or for Español, please visit Recursos en Español.