Racial discrimination in education has been illegal for 60 years, yet race-exclusive programs continue to crop up at K-12 schools and universities in the name of promoting diversity, equity and inclusion.
That’s where groups like the Equal Protection Project come in. The initiative launched in February 2023 by the Legal Insurrection Foundation seeks to rid academia of race-based programs, scholarships and preferences.
Taking on the DEI complex in U.S. education is no small task, especially for a group with just three part-time lawyers, but so far, David is getting the best of Goliath.
In just two years, the project has filed 63 anti-discrimination complaints with the Department of Education’s Office for Civil Rights. At least 31 have been resolved in the group’s favor, while the others are pending or were superseded by lawsuits.
William Jacobson, the Cornell Law School professor who founded Legal Insurrection and EPP, said that so far, the EPP has never lost a claim on the merits.
“The way the process works is that we file the complaint, and we typically get significant media coverage,” Mr. Jacobson said. “Sometimes that in and of itself is enough to get the school to change the program because these are indefensible practices. For many of them, OCR works out a resolution with them typically stopping the bad conduct.”
Examples include the California State University System’s Young Men of Color Consortium. After the project filed a complaint in November, the Office for Civil Rights got involved. Last month, the office said that the program had opened participation to any student regardless of sex or race.
The University of Arkansas recently removed from its website the BIPOC Mentor Circle Series, a program for “Black, Indigenous and people of color” started by a student group and sponsored by Walmart and Sam’s Club after the project filed a civil-rights complaint.
A university spokesperson said the series unveiled in September is inactive but that if it relaunches, “changes will occur to further clarify that participation is open to any interested students.”
“We define a ‘win’ as ending the discriminatory conduct,” Mr. Jacobson told The Washington Times. “Terminating a program is not our goal. We’ve seen a small number of cases where rather than opening it up, they terminated it.”
Not everyone approves of the project’s mission.
“The most common question I get is, ‘Don’t you feel there have been inequities in society that need to be remedied?’ And ‘What’s wrong with helping Black students? Or Latino students?’” Mr. Jacobson said. “And my answer is always, ‘There’s nothing wrong with it, but it’s illegal.’”
Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color and national origin in education programs that receive federal funds, but the law has taken a back seat in recent years to the goals of DEI gurus like Ibram X. Kendi.
Mr. Kendi argued in his 2019 bestseller “How to Be an Antiracist” that the “only answer to past discrimination is present discrimination,” but the law isn’t on his side, said Mr. Jacobson.
“If you want a diverse student population, if you want to help minority groups which you believe have been disadvantaged, there are lawful ways to do that, but the answer to past discrimination is not present discrimination,” Mr. Jacobson said. “We’re not in Ibram Kendi’s world, legally.”
His project is focused mainly on higher education. Sixty of its complaints have been filed against universities, while the others involve two public school districts and one state agency.
Groups such as Parents Defending Education, which was founded in 2021 and has filed more than 40 OCR complaints since, are filling the K-12 void.
Several of those complaints involve race- and sex-based “affinity groups,” school clubs that meet at lunch or after school for students with shared “identities.” The groups may also offer benefits such as mentoring, leadership opportunities, and field trips.
“We’ve seen this trend across the country,” said Caroline Moore, PDE vice president. “Some of them even have an academic component, where kids can get into accelerated classes based on the color of their skin. Some are for Black kids, some are for Hispanic kids, and if you are not one of the races, you cannot have access to these courses and groups.”
Parents Defending Education has also filed eight requests for investigations with the Equal Employment Opportunity Commission over race-based hiring goals in K-12 education.
“We’ve noticed in the last six months: A lot of school districts are starting what I would call a quota,” said Ms. Moore. “They’re saying it’s a strategic goal for the district: ‘By 2025, we’re going to have 25% Black male teachers, by 2026, we’re going to have 45% Black male teachers.’ I mean, they’re huge quotas.”
Other conservative groups have also filed complaints, which raises an obvious point: Why are small nonprofits taking the lead in ferreting out discrimination in education?
The simple answer may be that nature abhors a vacuum. Before launching EPP, Mr. Jacobson said he scoured the field to ensure that his work didn’t overlap with that of other organizations.
One group doing similar work is Students for Fair Admissions. This group won a major Supreme Court victory in 2023 with its lawsuit against Harvard, but its work has centered primarily on eliminating race-based admissions.
“There’s nobody doing what we’re doing, which is systematically challenging higher-ed programs done in the name of DEI which openly discriminate based on the basis of race, color or national origin,” said Mr. Jacobson said. “I think we’re the only one consistently doing that.”
Under the Biden administration, the department responded to complaints but rarely, if ever, undertook investigations into DEI-related discrimination independently. That dynamic promises to change under President Trump.
In the Trump administration’s first two weeks, the OCR has already launched proactive investigations into antisemitism at five universities and a gender-neutral bathroom situation in Denver.
Last week, the OCR opened an investigation into the Ithaca City School District in New York in response to an EPP complaint over its Students of Color United Summits, which includes a Frequently Asked Question on its website that asks, “Why aren’t white students invited?”
In his first two days, Mr. Trump issued executive orders sweeping DEI from the federal government and discouraging DEI in the private sector and academia.
A coalition of diversity officers and professors filed a lawsuit Monday against the Trump administration seeking to block his DEI orders, arguing that they have chilled speech and expression.
Mr. Jacobson’s project recently hired a full-time lawyer to help manage the workload, but he challenged universities to examine their diversity programs more closely with an eye to federal law.
“The burden of exposing and challenging racially discriminatory practices should not fall on small nonprofits like the Equal Protection Project,” Mr. Jacobson said. “Each of the institutions we have challenged have enormous anti-discrimination bureaucracies that are not doing their jobs because they do not view discrimination done in the name of DEI as a problem, much less unlawful.”
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.