Update on New U.S. Presidential Orders and Communications

Dear ATS Colleagues,

We continue to actively monitor the recent U.S. presidential executive orders (EOs) and other federal agency communications affecting higher education. Our current focus is on the January 20 and January 21 EOs concerning Diversity, Equity, and Inclusion programs and the February 14 “Dear Colleague” letter (DCL) from the US Department of Education Office for Civil Rights. 

We have consulted with higher education legal experts and have been in numerous conversations with other higher education membership associations to discern the legal status of these directives. Based on that, we understand the prevailing position to be that the EOs and the DCL, although instructive as to the Executive Branch’s priorities, do not have the power to alter laws prohibiting discrimination, such as Title VI, Title VII, and the Religious Freedom Restoration Act of 1993.  This is because the EOs and the DCL do not “carry the force of law” as they are not statutes nor regulations. 

We also understand that the new U.S. presidential administration may investigate recipients of federal financial assistance (those who receive grants or participate in Title IV) who are not complying with their recent EOs and the DCL. There may be legal defenses that are uniquely available to religious entities that would cause them to be lower on the priority list for investigations. However, they advise that theological schools embedded within larger institutions of higher learning, as well as institutions with large endowments or significant government funding, might face closer scrutiny. 

We are aware that some schools are acting in anticipatory compliance with the DCL, while others are preparing to respond that they are and have been in compliance if challenged. Schools should consider evaluating their current practices against the laws, regulations, and case law that are currently in effect to ensure that they are in compliance with these.  

Next, for practices that are covered by the EOs or DCL but are otherwise legally permissible, schools should evaluate their risks and risk tolerance in relation to their institutional mission, values, programs, and policies. This can help them to determine whether adjustments to communications, programming, or practices are necessary. 

These U.S. presidential orders and communications should not affect most Canadian institutions. However, those that access US Title IV funding may want to consider following the same steps that legal experts recommend for US-based institutions. We will continue to monitor new US policy developments and consider ways that they could impact our Canadian member schools. 

Our commitment to promoting the improvement and enhancement of member schools within their theological contexts remains unwavering. We always keep aware of current events to understand their potential impact on our communities, with political transitions being of particular interest. Our goal is to share information and resources as part of our ongoing efforts to stay true to our mission and values. 

We will continue to update you as this situation evolves. In the meanwhile, you may find recent information using these resources: 

National Association of Independent Colleges & Universities (NAICU) 

The New DEI Guidance: Legalities, Practicalities, and Political Considerations (Feb. 21 Webinar recording)

News and Updates from NAICU (Articles updated continuously) 

Headline News from NAICU (Articles updated continuously) 

Chronicle of Higher Education  

What Will Trump Mean for Higher Ed? 

American Council on Education (ACE) 

dotEDULive: The Future of Campus Diversity and Student Support (Feb. 19 Podcast) 

dotEDU Live: New Orders and New Challenges for Higher Education (Feb. 6 Podcast) 

Council for Higher Education Accreditation (CHEA)  

The Department of Education Has Given Schools a Deadline to Eliminate DEI Programs (Feb. 20 Article) 

Accreditors Brace for Trump's Promised Higher Ed Shakeup (Feb. 6 Article) 

If you have questions or concerns in the meantime, do not hesitate to reach out to me directly.

Grace and peace,

Frank M. Yamada

Executive Director

The Association of Theological Schools