Law in the Crosshairs: Federalism, Civil Rights, and the Fight for Equity in Higher Education

• In Event: Unforgetting in an Era of Erasure: Resisting Anti-Justice Attacks and Envisioning Futures for Higher Education

Abstract

In the wake of the Supreme Court’s 2023 Students for Fair Admissions rulings, the legal landscape for higher education has entered a period of accelerated change. Across the country, state legislatures are enacting anti-DEI statutes—such as Florida’s 2024 law banning identity-based campus programming and Texas’s 2024 expansion of its DEI office closures—that restrict the use of race in admissions, prohibit certain curricular content, and restructure governance to exert greater political control over colleges and universities. At the same time, the federal government is pursuing new rulemaking under Title VI and Title IX, including the Department of Education’s 2025 proposed guidance clarifying when “race-neutral” policies may still constitute intentional discrimination, even as political opposition seeks to narrow these protections. This paper examines these developments through the lens of education federalism, analyzing how the balance of power between federal authority, state sovereignty, and institutional autonomy is being renegotiated in real time. Focusing on current litigation—such as challenges to the Biden administration’s Title VI enforcement in North Carolina and to state bans on diversity hiring in Missouri—Robinson identifies key trends: the rise of “race-neutral” mandates that replicate historic patterns of exclusion; the leveraging of accreditation and funding streams as tools of compliance; and the increasing use of state preemption to block institutional equity initiatives. The analysis also considers potential legal strategies for advancing educational equity within this constrained environment, including federal–state partnerships, reframing higher education as a protected civil right, and pursuing litigation that tests the limits of restrictive statutes. By situating these conflicts within the broader constitutional framework, this paper offers higher education leaders and policymakers a roadmap for navigating—and contesting—the rapidly evolving legal conditions shaping access, diversity, and inclusion in 2026 and beyond.

Author

• Kimberly Jenkins Robinson, University of Virginia School of Law