Executive Order on Accreditation and Injunctions of Dear Colleague Letter Impact DEI in Higher Education

Any such action could have substantial adverse consequences for an institution of higher education (IHE) accredited by an agency that loses U.S. Department of Education (ED) recognition. Federal financial aid monies, including grants (such as Pell Grants) and loans (such as PLUS loans), are not generally delivered directly to a qualifying student but are disbursed to the school, which applies the funds to covered tuition and other authorized charges, and then provides any remaining funds to the student to be used for authorized educational purposes. Only IHEs accredited by an agency recognized by ED are eligible to receive federal financial aid for their students.

The EO claims that some accreditors require schools, as condition of accreditation, to adopt unlawfully discriminatory practices related to diversity, equity, and inclusion (DEI). The EO specifically identifies the accrediting bodies for law and medical schools as including in their accreditation standards that schools must take steps to support diversity in their student bodies. The EO states that the accrediting body for law schools, the American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar (Council), previously required schools to “demonstrate by concrete action a commitment to diversity and inclusion,” including by “commit[ting] to having a student body [and faculty] that is diverse with respect to gender, race, and ethnicity,” which the EO asserts was a violation of the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (SFFA). The EO similarly criticizes the medical school accreditor for requiring schools to “engage[] in ongoing, systematic, and focused recruitment and retention activities, to achieve mission-appropriate diversity outcomes among its students.” The EO directs the Attorney General and Secretary to “investigate and take appropriate action to terminate unlawful discrimination by American law schools” that is “advanced by the Council, including unlawful ‘diversity, equity, and inclusion’ requirements” and directs the Secretary to assess whether to suspend or terminate recognition of the Council. The EO includes a similar direction with respect to the accrediting bodies for Doctor of Medicine degree programs and allopathic and osteopathic medical residency and fellowship programs.

More broadly, the EO articulates “New Principles of Student-Oriented Accreditation” for any accrediting body recognized by ED. These principles call for the Secretary to “take appropriate steps” to “ensure” that, among other criteria, accrediting bodies require “that institutions support and appropriately prioritize intellectual diversity amongst faculty in order to advance academic freedom, intellectual inquiry, and student learning,” do not use accreditation standards to “encourage or force [an] institution to violate State laws,” and refrain from “engaging in practices that result in credential inflation that burdens students with additional unnecessary costs.” The EO also directs the Secretary to “mandate that accreditors require member institutions to use data on program-level student outcomes to improve such outcomes, without reference to race, ethnicity, or sex.”

The EO also instructs the Secretary to “resume recognizing new accreditors to increase competition and accountability,” to “launch an experimental site” to establish “new flexible and streamlined quality assurance pathways for higher education institutions that provide high-quality, high-value academic programs,” and to “ streamline the process for higher education institutions to change accreditors to ensure institutions are not forced to comply with standards that are antithetical to institutional values and mission.” Currently, ED recognizes eight regional accrediting agencies operating in six regions of the United States that accredit an entire higher education institution.[1] The EO’s invocation of potential suspension or termination of ED recognition, combined with a call for fast-tracking recognition of competing accreditors, poses a substantial threat to accreditation bodies.

The Secretary has acted promptly to begin carrying out the EO. On May 1, 2025, ED issued a Dear Colleague Letter regarding “Changes to the Approval Process for Changing Accrediting Agencies,” which makes clear that ED “will conduct expeditious review of applications” by colleges and universities to change accrediting agencies or maintain multiple accreditations, “except in rare cases where an institution lacks a reasonable cause for making a change.” The document states that ED seeks to “allow institutions the freedom to develop unique partnerships with accrediting agencies,” including “any decision to change an accrediting agency because of an institution’s religious mission, shift in academic program offerings, compliance with a state law, desire to set stronger academic standards, or any other justifiable desire of the institution.”

Injunctions Barring Enforcement of the Dear Colleague Letter Regarding Racial Discrimination
The EO’s attack on DEI echoes prior executive actions directed at educational institutions, including a previous Dear Colleague Letter issued by the Department of Education on February 14, 2025 (February DCL). As described in Pillsbury’s February 24, 2025, alert, the February DCL claimed that educational institutions have engaged in racial discrimination under the banner of DEI, and directed schools to comply with the Department’s interpretation of SFFA or risk losing federal funding. The February DCL, however, was quickly challenged in court, and on April 24, 2025, two separate federal district courts blocked its enforcement.

In National Education Association (NEA) v. U.S. Department of Education, a district court in New Hampshire issued a preliminary injunction against the February DCL. The court held that the February DCL is unconstitutionally vague under the Fifth Amendment. The court also concluded that the plaintiffs are likely to succeed on the merits of their claim that the February DCL violates the First Amendment rights of higher education educators by engaging in impermissible viewpoint discrimination and that the Government was attempting to coerce third parties (i.e., colleges and universities) “to punish or suppress disfavored speech on [their] behalf.” The court also ruled that the plaintiffs are likely to succeed on the merits of their Administrative Procedure Act (APA) claims, in that the February DCL was contrary to a constitutional right, in excess of the Department’s statutory jurisdiction, contrary to law, and in violation of the APA’s notice-and-comment requirement. The court enjoined the defendants from enforcing and/or implementing the February DCL against the plaintiffs, their members, and any entity that employs, contracts with, or works with one or more plaintiffs or one or more of plaintiffs’ members.

In American Federation of Teachers (AFT) v. U.S. Department of Education, a district court in Maryland also issued an order staying implementation of the February DCL. The court decided that the APA applies because the February DCL “effects a substantive change in existing law or policy” by imposing new legal obligations on regulated parties and impermissibly extends Title VI to cover classroom speech and curriculum. The court ruled that the plaintiffs are likely to succeed on the merits of their claim that by seeking to exercise control over the content of curriculum, the DCL exceeds ED’s statutory authority under the Department of Education Organization Act (DEOA), which provides that ED cannot exercise “direction, supervision, or control” over “the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, over any accrediting agency or association, or over the selection or content of library resources, textbooks, or other instructional materials by any educational institution or school system.” The court also ruled that plaintiffs were likely to succeed on their First Amendment claims with respect to the portion of the February DCL that “regulates specific forms of speech of a particular viewpoint by declaring them discriminatory, and therefore unlawful.” The court issued an order to temporarily stay the February DCL pending final resolution of the case, rather than issuing a preliminary injunction, which would allow ED to continue to “enforce Title VI consistent with long-standing principles and the dictates of SFFA” provided that it does not “depart[] from existing law.” Since the NEA preliminary injunction has nationwide effect, however, the limited leeway provided by the stay in AFT would apply only as to IHEs that do not employ or contract with members of the NEA or of the two other plaintiff associations in the NEA case.

Potential Litigation Against the EO
Litigation challenging the accreditation EO is likely. Challengers could argue that the reasoning of the AFT decision should be applied to blocking implementation of the EO. A court could find, for example, that acts by ED to restrict an accrediting body’s standards may violate ED’s statutory authority under the DEOA, given the DEOA’s specific prohibition on the Department exercising “direction, supervision, or control” over “the curriculum, program of instruction, administration, or personnel of … any accrediting agency or association.” See 20 U.S.C. § 3403(b).

The EO may also be challenged under the Fifth Amendment. The court in the NEA case concluded that the plaintiffs were likely to succeed on their claims that the February DCL violated the Fifth Amendment as unconstitutionally vague because the February DCL did not make clear “what the Department believes constitutes a DEI program, or the circumstances in which the Department believes DEI programs run afoul of Title VI” or “even define what a ‘DEI program’ is.” The court noted that DEI is a “broad” concept and that several courts have struck down similar laws as void for vagueness. The EO similarly does not define what it means by “standards of accreditation related to … DEI,’” and accrediting bodies are likely to be left wondering what standards are permitted.

On the other hand, on May 2, 2025, in the case National Urban League v. Trump, a federal district court in the District of Columbia denied a motion for a preliminary injunction against two other anti-DEI Executive Orders issued by President Trump, ruling that the plaintiffs had not established that they were likely to succeed on their facial challenges to those executive orders, which included Fifth Amendment and First Amendment claims.

Pillsbury will continue to monitor these developments.

^{[1]  There are also scores of specialized or programmatic accreditation bodies that typically review units within an institution that has separate institutional accreditation; many, but not all, of such programmatic accreditation bodies are recognized by the U.S. Department of Education, as the accredited program may rely on an institutional accreditation to qualify for receipt of federal financial aid funds. The Council for Higher Education Accreditation (CHEA), an independent nonprofit organization, also confers recognition on accrediting bodies, and many accrediting bodies hold both CHEA and U.S. Department of Education recognition.}