Vermont State Colleges DEI committee hears legal briefing on federal executive orders and risks to DEI programming and federal funding

Rodney Samoma, president of Vermont Law and Graduate School, told the Vermont State Colleges Board of Trustees' Diversity, Equity and Inclusion (DEI) Committee on March 6 that recent federal executive orders and agency guidance create a range of legal and practical risks for DEI programming and for institutions that receive federal grants.

Samoma framed his presentation as an educational briefing and began with a legal disclaimer: "I am not your lawyer," he said, adding that the committee should consult its counsel on binding legal questions. He described a three-step approach institutions should take when assessing executive orders: (1) determine exactly what an order says, (2) obtain legal advice on the order's validity, and (3) decide how the institution will respond.

The heart of Samoma's talk was how the current administration's guidance interprets recent court decisions and how that interpretation might be enforced. He said the administration takes the position that gender identity is not covered by Title IX and that the administration has issued a strong ban on transgender participation in intercollegiate sports. Samoma noted, however, that state law and other federal statutes remain binding and that institutions "can continue to prohibit" discrimination on gender identity as a matter of their own policy.

Samoma reviewed the Supreme Court's Students for Fair Admissions rulings and the administration's February 14 "dear colleague" letter and a February 28 FAQ document. He said the administration reads the court decisions broadly and is warning colleges that race-conscious practices beyond admissions — including race-specific scholarships, awards or other tangible benefits — may now violate Title VI and the Equal Protection Clause. "Don't have scholarships in which students of only one race are eligible," he said, summarizing the administration's guidance.

Turning to DEI programming, Samoma described agency documents that suggest some DEI activities could be treated as discriminatory if they are judged to create a hostile environment for students of any race. He read language from the February 28 guidance that exempts cultural and historic observances so long as they are open to all students, but warned that other programming could be viewed as crossing a line. He said the constitutional question then shifts to the First Amendment, and expressed confidence that courts would protect a good deal of classroom and speaker-based programming as constitutionally protected expression.

Samoma outlined a four-rung "ladder" of federal approaches to DEI. The top rungs, he said, are likely lawful: (1) abolishing internal federal DEI offices inside agencies (government speech), and (2) ending federal grants whose explicit purpose is to fund DEI work. Lower rungs present closer legal questions: (3) conditioning non‑DEI grants to steer recipients away from DEI language or practices (a close call under First Amendment doctrine), and (4) an across‑the‑board rule cutting all federal funds to any recipient with any DEI activities (which Samoma said would likely be struck down as an unconstitutional condition).

Samoma cited precedent and doctrinal tests that institutions should watch: the Administrative Procedure Act, the Bostock decision (addressing sex and gender identity under Title VII), Rust v. Sullivan (upholding statutory limits on what federally subsidized providers may counsel), and later cases striking funding conditions that unduly restrict speech. He said roughly "at least 40" lawsuits have been filed challenging various executive actions, with perhaps "5, 6, 7, 8" directly bearing on higher education; courts typically grant relief to the parties before them, and other institutions often wait to see those rulings before acting.

He also described practical enforcement mechanisms in agency guidance: a public complaint portal for reporting alleged Title VI violations and the possibility of interim leverage if agencies withhold funding while compliance is contested. He noted operational consequences institutions should plan for, including personnel and program contingency planning if grant funds are reduced or eliminated.

During Q&A trustees asked for examples of institutional responses. Samoma recommended scenario planning for grant loss (reassigning or dismissing staff covered by grants, finding alternative funding), careful review and possible removal of DEI language from nonessential grant materials, and a measured approach to litigation risk that balances principles and institutional exposure. When asked about Pell Grants, he said the administration had not publicly moved to cut Pell but that it would be prudent to consider contingency plans.

Trustees heard that the February 28 FAQ draws a line allowing cultural or historical observances "so long as they do not engage in racial exclusion or discrimination," while warning that mandatory courses or programming that force students to adopt a particular ideology could trigger legal problems under the administration's reading.

The committee took two routine procedural actions by voice vote: it approved the Dec. 9, 2024 meeting minutes and later voted to adjourn. Individual recorded roll-call votes were not provided in the transcript.

Samoma offered to consult further with college counsel. The committee did not take any policy or regulatory action at the meeting; the presentation was educational and the committee's next steps were limited to planning and counsel consultation.