Subtitle

Unconstitutional Usurpation Through Obfuscation

Document Type

Article

Publication Date

2026

http://dx.doi.org/10.2139/ssrn.5500099

Abstract

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine protects against three dangers corresponding with three key constitutional values central to the doctrine: the dangers of (1) denying fair notice and warning to those subject to laws (implicating core due process values); (2) arbitrary or discriminatory enforcement of laws (implicating equal justice principles); and (3) chilled speech (implicating First Amendment freedoms).  Trump’s sweeping attacks on diversity, equity, and inclusion have resulted in each of these dangers coming to fruition, undermining vital constitutional values in the process. While being unconstitutionally vague, Trump’s anti-DEI mandates also implicate interrelated separation of powers concerns, as the Trump administration increasingly attempts to usurp powers constitutionally allocated to other branches of government. Consequently, Trump’s unpresidential and unprecedented issuance of sweeping anti-DEI mandates poses a substantial threat not just to our academic institutions, but also, more broadly, to the well-being of our constitutional democracy, amounting to “usurpation by obfuscation.”

The Trump administration’s attempts to justify its anti-DEI attacks as merely honoring principles of color-blind neutrality conflict with longstanding laws and policies affirmatively honoring and protecting diversity, equity, and inclusion. In the end, this is not a time for neutrality. It is, rather, a time for this country’s courts, legislative bodies, and community members alike to unequivocally resist unconstitutional, unjust attacks on diversity, equity, and inclusion.

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