Desperately Seeking Title IX Clarity

Scott Schneider

Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider, attorney and adjunct professor at the University of Texas School of Law. And I’m joined by Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode will unpack the key legal developments that matter to higher ed leaders, student rights, faculty contracts, the DEI lawsuits and government oversight. 

Campus Docket is produced by Volt, the go-to news source for higher ed leaders and decision makers. Remember to visit Volt at Voltedu.com and subscribe to Campus Docket on Apple Podcasts, Spotify, or wherever you get your podcasts to make sure you never miss an episode. Let’s get into this week’s show.

Eric Kelderman

Hey, welcome to Campus Docket. I’m Eric Kelderman, senior writer at the Chronicle of Higher Education. As always, happy to have my esteemed friend Scott Schneider here, dialing in live from New Orleans, Louisiana. Scott, tell us why you’re in New Orleans.

Scott Schneider

It’s Mardi Gras, man, come on. Let’s get serious, man. It’s Mardi Gras.

Eric Kelderman

Why are we not all in New Orleans doing this live from your…

Scott Schneider

Some people make bad decisions in their lives.

Eric Kelderman

Is the bad decision not being there? Is that it?

Scott Schneider

I can only speak for myself. I’m grateful to be here. I suspect y’all would like it, but I don’t know. I think that’s probably the bad decision. But what do you have planned this weekend?

Eric Kelderman

Nothing as good as Mardi Gras. mean, absolutely.

Scott Schneider

Well, then you’ve made a bad decision.

Eric Kelderman

So we’re also joined today by a friend of Scott’s and another very accomplished higher ed attorney, Jackie Wernz. Jackie, why don’t you tell us a little bit about your background?

Jackie Wernz 

Yeah, sure. Thanks so much for having me. It’s really exciting to be here. I really enjoy your podcast. I run a company called ECR Solutions, which is Education Civil Rights Solutions. And I help schools and colleges and universities with civil rights compliance, investigations, institutional audits, those types of things. Before doing this work, I served as the interim director of civil rights and investigations at a large public university and also as a civil rights attorney with the U.S. Department of Education’s Office for Civil Rights.

Eric Kelderman

Can you disclose to us which large public university you worked at?

Jackie Wernz

I was at the University of Idaho. Yeah, it’s not a secret. Just, you know, sometimes people, I don’t know…

Eric Kelderman 

Okay, very good. Okay. All right. Now that I just wanted to clarify, that’s great. Thank you very much for being with us. I’m happy to have you here. We have a lot to talk about. And before we get going though, we always do an icebreaker with our guests. 

So we have to ask you a weird question that hopefully elicits some interesting answers. And this question, this topic was put in my brain by Scott who, if you’re listening to this podcast and you’re not friends with Scott, you should be and you should also get on his text chains because he sends you weird and provocative text messages at various hours during the day. And Scott sent me a text detailing his three most, what would you call it, impactful purchases in your life. And so I’ll leave it up to Scott to disclose as much as he wants to about that. But that’s our icebreaker for today, which is what’s your most valuable, useful, helpful possession that is not a house or a car or something that’s luxurious, you know what I mean? Like something that you think like every day you get up and you might see this thing or use this thing and you’re like, wow, I’m so glad I have this in my life.

Jackie Wernz 

Oh boy, I feel like this is gonna show the world how lame I am. Cause I’m thinking like my case for my iPhone that I can connect my keys and my wallet to so that it’s all right there and I don’t lose it. That’s really big, high on my list. Yeah, probably my Peloton, even though I don’t use it very much. It’s like a pretty useful impactful thing when I do choose to use it.

Eric Kelderman 

No. No, that’s important. I get it. Okay.

Jackie Wernz 

So that’s pretty cool.

Eric Kelderman 

All right.

Jackie Wernz 

Not a house and car. Okay, that’s too bad. I really like those, but oof, I don’t know. The third one…

Eric Kelderman 

Okay. Okay. No, those are good selections. 

Jackie Wernz 

Okay, good. I’m like, I don’t think I could get to three.

Eric Kelderman 

Scott’s got some great answers for this. I’ve already heard them.

Scott Schneider

I don’t remember what I told you… I don’t know if I should bring it up, but I will say…

Eric Kelderman 

No, I know what you’re talking about. We can leave that one aside. Okay.

Scott Schneider 

No, I’m going to do it. It’s a life, you know, I, it’s a life changing purchase, but I didn’t, I didn’t realize I would go into this level of personal detail, but about two years ago, we stayed at a friend’s house, actually in the French quarter, was two years ago during Mardi Gras and they had a bidet.

And I just said, you know, was amazed and then we went to Japan and they have them everywhere. And I was like, we need to purchase this for our home. And it’s like literally one of the best purchases. There’s very few things that you can buy that make a positive impact on your day-to-day. But that was one. I didn’t realize I would go into that detail.

Eric Kelderman 

Listeners, listeners, this is the kind of podcast higher ed content you are not going to get on any other podcast. So you’re welcome.

Scott Schneider

The other purchase, and it’s not many purchases, again, that will materially improve your life, but I mean, a more conventional answer is the noiseless, noise canceling headphones. I have some Bose. I used to travel a ton. And man, that was a great gift. There’d always be some kid screaming in the back. It’s like, put them on. That was great. So those are two good purchases.

Jackie Wernz

So, well Scott, my case for my phone has a little pouch for my Bose noise canceling headphones so that I can easily find those as well.

Scott Schneider

It’s the best. I like, I try to work, you know, like all over the place and may as put those things on and you’re zoning out.

Eric Kelderman 

The third thing you mentioned to me in your text to me, and I know this was a couple of weeks ago already, but it was your new coffee machine, I believe, was the…

Scott Schneider 

Oh yes, yes. Oh my God. We bought this, I love my wife, man. My wife is great, but she would make coffee every morning. And truth be told, it was hit or miss. Lots of misses. It’s so, like one night I was like, man, I need to have consistent quality coffee. And so I bought this… two weeks ago, I bought this Nespresso machine. And my god, it is so good, man. I’m so happy. That is another great thing I purchased. Now I’ve criticized my wife’s coffee making. I apologize for that.

Eric Kelderman

Yeah, sure. So mine is very simple and actually this is a gift, but it’s something I use almost every day and that’s my Yeti coffee cup. I travel with it, I take it out into the woods, hiking or whatever I’m doing. It’s indestructible. I’ve left it on the roof of my car as people often do. It falls off. It’s perfectly great and it keeps my coffee hot and I love it. I really do. It’s such a dumb thing, but it’s an indispensable part of my life.

Scott Schneider

Yeah, it would be cool if the bidet companies heard this podcast and started sponsoring Campus Docket.

Eric Kelderman

Good idea. Do you want to mention the brand bidet you have so that we can… You want a little product placement? 

Scott Schneider 

No, not yet. I want to open up. I don’t want to get committed to one company. I want to open it up to the possibility of a sponsorship.

Eric Kelderman 

Alright, alright. Well, you’re reading the promo if they do that. Anyway, moving on.

Before we get into the heart of our discussion, we’d like to do sort of latest updates on legal developments that are happening. And there have been a number of things since we last recorded that I’d like to raise for us to talk about. And these are quick bits, but, one of the latest things is that the Department of Ed has now warned Tufts University and sent sort of a Dear Colleague letter to college presidents saying that their participation in the national study of learning, voting, and engagement may be a violation of FERPA regulations. Honestly, I’m not quite sure what to make of this. I think the concern that they raised from my understanding of this is that and this is a, by the way, this is a center at Tufts that measures how many students are voting and where and things like that. And the concern, I guess, from the department is that colleges are getting direct or the center, the NSLVE center is getting directory information from institutions and matching that data, I guess, with voter rolls. And they’re saying that that matching was not specifically okayed by the students and that somehow is a violation of FERPA. I don’t know if you guys have any takes on that.

Scott Schneider

Yeah, I have a hard time following, you know, so generally FERPA protects with exceptions. It’s a privacy statute which protects education records and it’s… It was legislation enacted in the 70s, as I recall. The 70s were that time when you get some of the more late 60s consequential legislation impacting higher ed. It’ll be interesting. I mean, directory information is disclosable, you know, pursuant to FERPA, assuming, you know, a student hasn’t opted out from disclosure of directory information, which is pretty rare. But yeah, it’ll be interesting. As I understand it, I mean, of course, you know, there’s some political layer to it. I mean, what is the Trump administration saying is going on here, Eric? I don’t totally get it.

Eric Kelderman

Yeah, it is a little hard for me to parse, in the letter to college presidents, which I guess we could call a Dear Colleague letter, the department says FERPA restricts institutions from disclosing directory information without consent unless they publicly identify precisely what constitutes directory information and enable each student to opt out. It says NSLVE’s data matching process appears to involve combining directory information with non directory information. This type of data matching creates records that cannot be disclosed without students’ consent and is where FERPA concerns are at their zenith. And kudos to the folks at Ed for coming up with the word zenith in that sense. I thought that was a really declaratory sort of statement. So that’s again, I’m assuming that what they’re talking about is that participating campuses, NSLVE participates with about a thousand campuses. They collect student information and then I guess they must match that with voter rolls, state voter rolls to see who voted in the last election.

Scott Schneider

Thanks. I’m not hearing anything that screams FERPA violation, assuming, again, that the schools are providing that information to a contractor, you know, have appropriately come up with number one, a definition of directory information and afforded students the opportunity to opt out. And then they are also not providing to this contractor information from students who have opted out. But the rest of it that you take that directory information and do stuff with it based on information out in the public domain, I just I’m not sure I totally understand how that would violate FERPA. The only thing I’d add too, I mean, is historically, and I know the Chronicle has written on this extensively over the years, there’s been very little, if any, compliance activity around FERPA. And this, I remember we had one instance many years ago where there was a pretty egregious FERPA violation. And the regulatory response was, make sure it never happens again. Look at your policy again and write a hundred times on the blackboard “I will not violate FERPA ever again.” The kind of reorienting this administration is so peculiar in the sense that it’s not conservative in any traditional sense about, you know, limiting the authority of the federal government to regulate. It takes this expansive view of statutes and concomitant compliance obligations. And here, I guess the overlay is there’s some sense that, you know… the survey and the information is being used to advance politicians or causes that aren’t in line with this administration. And that’s, I can’t think of any precedent for anything like that. That’s unprecedented.

Eric Kelderman 

Jackie, do you want to jump in here? Do you have anything to add?

Jackie Wernz 

Yeah, I think, I mean, from what I’m hearing, and I haven’t looked into this closely, but it sounds like there’s a little bit of a conflation of two ideas under FERPA. One is that you can release directory information. You typically have to say, like, this is the kind of information that we will release and then give people the opportunity to opt out, as Scott mentioned. But then you also do have a responsibility never to produce identifiable data without providing, without getting consent or fitting that within an exception under FERPA. And it sounds like there’s a little bit of a conflation of that here because it sounds like the schools were releasing directory information that likely is covered by their disclosure. But then whether someone out in the public is able to take that information and in a sense, re-identify it. That is, I think it’s an interesting question. I’ve never really dealt with that specifically before, but I do know that in responding to public records requests and things like that, institutions regularly are thinking, you know, if we put this information out there, even though it looks like it’s de identified, is someone going to be able to take information available in the public and re-identify it? And in that case, we’re not going to release it. And so it seems like they’re kind of mixing these two ideas, but what it really sounds to me like is a concern that you’re putting out de-identified data, but we now know that the public is able to take that and re-identify it. So does that, are you now allowed to release that? And I think it is kind of an unprecedented question.

Eric Kelderman

Right. There’s some interesting, you probably know this, there’s some interesting backdrop here, which is that student voting and student engagement has become a controversial issue over the past decade or so. A number of red states have sought to make it harder for students to vote in general. And I think this is part of that trend, which is we don’t want colleges somehow helping students or encouraging students to vote because we think they’re gonna vote for Democrats. I think that’s sort of part of the underlying sort of ethos that’s affecting this. Let’s move on. 

I wanna talk to, this is something that you guys are both familiar with, but just a couple of weeks ago, the US Department of Education, I guess, found that San Jose State University had violated Title IX. This has to do with, male to female transgender person on their volleyball team. There was quite a bit of consternation about this a couple years ago. One of the other players on the team was unhappy about this and then when San Jose State went to certain contests, other teams refused to play, etc. And there was some, I guess, controversy over this player being in the locker room, etc. potential injury to, I guess, opponents somehow because of, I guess, the strength that this player potentially would use in spiking the ball or something like that. Anyway, thoughts?

Scott Schneider

Yeah, I play, we play volleyball in the league and I do spike the ball. I have never heard anyone with a spike, I will say that, but I have pulled a hamstring. It was really painful. Setting that aside, yeah, it’s really, you know, the legal issue I think is… It’s interesting and we’re probably going to get some clarity from the Supreme Court on these issues pretty soon. The short version is Title IX prohibits discrimination on the basis of sex, but it allows sex segregated athletics team, so long as you offer basically equal opportunities to participate. And there’s a whole regulatory scheme on that. Then there’s this gloss on top of that about if I identify as female, I am biologically male, but identify as female, whether or not Title IX, which is this is the Trump administration’s interpretation, actively precludes participation, right? Or, the flip, and there’s some courts that said this, which is no, Title IX compels you to allow those student athletes to participate in female sports. And the Trump administration obviously has a position. I don’t know if the cases in front of the Supreme Court will reach the kind of penultimate decision about the extent to which Title IX would compel one outcome or the other. But it’s at least worth pointing out that there is circuit court of appeal opinions out there that conflict with the Trump administration interpretation and at minimum, and I’ve said this for as long as they’ve made a big to do about this, to not acknowledge that and in some cases the bind that that puts universities and school districts in, I just think is completely unreasonable. But Jackie, did you have any additional more thoughtful thoughts about that?

Jackie Wernz 

No, I think that’s very much in line with my thoughts on we need answers. Educational institutions just need to be told at this point what the law requires because it’s been changing back and forth for a decade now. It’s just we can’t handle it. It’s not institutionally possible, I think, to get it right based on what the law is out there and the enforcement actions that are going on out there right now. I will say, you know, this is something that I’ve been lucky enough to to help some educational institutions with. over the last year, just as far as interfacing with OCR in dealing with these situations and with threats of enforcement and what types of changes may be able to be made to policies that will meet OCR’s needs, but also potentially leave open some wiggle room to comply under state law. And that hasn’t necessarily been pushed back on the way that I necessarily expected it to be. And so I do think, you know, educational institutions should not be making knee jerk decisions based on things that are happening to other institutions. They should be working very closely to figure out what is their state law require, how does that match up with OCR, and really what kind of dialogue could be had with OCR right now to try to prevent some of these really sticky situations. I think where they’re finding themselves in trouble is where there are these really high profile situations. where the campus community is saying, no, we want to take this position. And it is counter to what Ed understands the law to be right now. And you’re sort of setting yourself up for a big fight. And we’ve seen from this administration, they love a big fight. They love a big press release. so that can be really a difficult situation for some institutions. One other thing about this that jumped out at me was that the decision talks about a student that had been, I guess, charged with harassment based on misgendering someone and that they felt like that was retaliation or that was inappropriate under Title IX. And I think this is an area where there’s a lot of confusion right now as to whether if someone comes in and says, you know, I’m being repeatedly misgendered. I’m, you know, they refuse to use my pronouns, my preferred name. when that is protected under Title IX versus when can you not address it because of the First Amendment. And so this really brings that to the forefront. That is, if I had to say the number one thing right now I think institutions are trying to balance is the balance between civil rights laws and the First Amendment. And this is just another example of many where that’s coming into play.

Scott Schneider 

Yeah, there’s that. Man, that looks like music to my ears is trying to figure out the, and it’s, there is tension between our obligations to comply with civil rights laws and maintain an environment free of harassment and, you know, First Amendment speech. And there was that case and I put a LinkedIn little post about it at the university of Florida, where at the law school. He had a student come out and make some really remarkably antisemitic comments. And Florida basically, I think, expelled him or removed him or disciplined him. And that discipline was enjoined by the district court who said, no, that’s core protected speech. And then was reversed in a 2 1 decision by the 11th Circuit that said, there are limits the way they kind of think about it is free speech is not categorical. It’s only protected to the extent it doesn’t cause, for instance, in the education environment, undue disruption. And here it did in a way that triggered Title VI obligations. And therefore, we’re going to reverse the injunction. I suspect, I think, there will be a full 11th Circuit en banc panel that considers that. And I’ll just say this. Under the previous administration, remember Catherine Lhamon at a NACUA conference going, there’s no tension between the First Amendment and your obligations around civil rights compliance. And I went, yes, there is. These are complicated, nettlesome issues. And I think there are frameworks and ways to work around them in the 11th Circuit in that decision. Yet the district judge come to one conclusion, two appellate court judges come to another and then a third who said I agree with the district court judge. They’re remarkably complicated. And I think colleges more than anything, you know, it’s we need consistent guidance about how to navigate these issues. And certainly the previous administration refused to even acknowledge any tension. I think this one does the same thing on steroids, right? On some of the Title VI stuff, they don’t even wrestle with kind of the First Amendment dimensions of, or even in a private university setting, sort of contractual related obligations that schools have created around protecting academic freedom and robust political speech and all that sort of stuff. As someone who tries to think about these things, not as a culture warrior, but as a pragmatist, it is enormously frustrating.

Eric Kelderman 

Yeah, good takes. Thanks everybody. Let’s move on. 

The reason we want to talk to Jackie today is something that’s been sort of, I think, bubbling under the surface for some time, which is the current administration’s stance on anti discrimination law, right? So Title VII, to a certain extent Title VI, and recently my colleague, my brilliant colleague Emma Pettit wrote this, wrote a piece about this for the Chronicle, and I’ll just read a couple of graphs here from that, which is “Speaking from the White House in 1964, President Lyndon B. Johnson assured Americans that Civil Rights Act he was about to sign, this is Title VII, would not give, quote, special treatment to any citizen.” And her following paragraph says “That simple statement captured an enduring tension of Title VII. A key portion of the act, though the statute arose to help dismantle employment against discrimination against Black Americans. It was ultimately written in universal race neutral terms, guaranteeing equal treatment for majorities and minorities alike.” And I think this is something that not only the current administration wrestles with, but higher ed as well. We’ve seen decades of efforts by colleges to increase the racial diversity among their faculty and their students. We had a Supreme Court decision against using race in admissions, which overturned decades of precedent there. And now we’re talking about our colleges when they seek to diversify their faculty, to what extent can they or should they use race as a factor in seeking to do that? And so I know Jackie, can you just give us, is this really a central tension of Title VII, this idea that while we’re trying to erase past discriminatory practice, we can’t then address race in seeking to redress those wrongs, in seeking to create some quality in hiring and employment?

Jackie Wernz

I don’t know that I would say it’s a central tension and that may be based on my own biases, which will probably come out during this conversation about what it is that, you know, civil rights laws like Title VII should be doing or were intended to be doing or the work they can do that’s really important in education. But where I think the tension has arisen is that, and the article is beautiful. It does such a great job of talking through the history of the law and how we kind of ended up where we ended up. And what it talks about is how when the law was initially passed, the idea was don’t actively discriminate against people based on their protected status. But then there was recognition by courts, and this was under both Title VII and under Title VI with respect to education, and Title IX, that in some circumstances, if you had active discrimination within a program, within an institution, you could take steps to remedy it. And that was, that is what we think of when we, what we should think of when we think of the word affirmative action. That’s what it means, right? But what has happened over the years is that that has bled into this much more active form of diversity, equity, and inclusion (DEI), that doesn’t ground itself on data or facts supporting discrimination in a specific institution. but instead is built on outcomes and the fact that even if we haven’t identified or no one has pointed out actual discrimination, active discrimination within our institution, our faculty doesn’t look like we want it to look. It doesn’t represent the students we teach. And so we are going to take that a step further. And I think that the article does a really good job of explaining that a lot of that seemed like it was supported by the Obama administration, by the Biden administration. And so I think a lot of educational institutions felt like they were doing the right thing. But as the article points out, the law doesn’t really back that up. And I think Scott and I have been saying this for years that it doesn’t back it up because those kinds of race conscious decisions are only really available if you have a very limited situation where you can prove active discrimination that has had an impact on an environment.

Scott Schneider 

Yeah, hey, god, that was so good and so spot on. The only, I’ll add a few things. And Emma, man, she writes some great pieces. I used at one point, like I did a two hour training around one of her pieces on the situation at the University of Utah. She’s just, she’s talented. And I always, the Chronicle always gets, you know, a level of nuance that’s always just really appreciated. The thing about Title VII, it’s in our immediate lifetime and maybe over the course of the 20th century, it is without question the most consequential piece of legislation that was ever passed. And there is no doubt that the goal of Title VII and the aim of Title VII was really almost universally focused on prohibiting race discrimination in a very specific context that Black people in particular were being discriminated on the basis of race in employment. Added were sex, the history of that is really interesting. But the goal, the aim, the historical and the legislative record on this is super clear. It was unilaterally focused on overt discrimination against Black people in employment. And then what you see over a period of 20, 30, 40 years is what Jackie was alluding to. Well, alright, now everybody is free from discrimination. Well, just last year, 1963, you precluded me from getting a job here because I was black on account of my race. And therefore, like I wasn’t able to get promotions and all that sort of stuff. And so what does Title VII require, what does civil rights law require in a situation like that where there has been overt discrimination, state sanctioned discrimination in some places, to remedy that history of discrimination. And there’s been some really interesting case law that’s developed over 40-50 years, which isn’t 100% clear, but which comes back to if you have something like that, there may be some steps that you can take to remedy that, but you can’t revert immediately to using explicit considerations of race. You have to look at other factors. And then maybe if those factors don’t address, the long and short of it is that’s a long intensive process where you have to be able to show, number one, this is a product of discrimination. Number two, we’ve explored neutral ways to do it. And that was not being, there was a period probably about 4-5 years ago where that was not being done. And people were saying things that I may agree with by the way, as a matter of personal preference, but it is a matter of law, I don’t think this is right. And now you see, I mean, we were certainly seeing case law developed in the fifth circuit around this, but we’re seeing this administration kind of really take a particular interest in that issue. And I thought the article did a great job of kind of just framing, you know, the historical issue, kind of where we’ve been and sort of the lay of the land and the law, which is a little more ambiguous. And look, I don’t know what to say. They were clearly just based on public pronouncements, things that were being said and done that I think made every employment, even reasonable employment attorneys, like cringe a little bit.

Eric Kelderman

Right. Let’s add in another layer of historical context here and some of the administration’s actions. So I know Scott, when this happened you were sort of flabbergasted. The Trump administration, you know, eliminated through executive order the Lyndon, the Johnson administration’s executive order 11246, which mandated that federal contractors and subcontractors take “affirmative action to ensure job opt-ins are not discriminated against.” So I’d like to hear about sort of, so we had Title VII and then we had a concept called affirmative action, right? And it’s been used for decades to promote jobs for women and underrepresented minorities in the federal contact tree process. Is there an impact on higher education or I guess maybe more broadly by by the Trump administration eliminating that effort by the Johnson administration to promote affirmative action. In other words, that change the whole culture around this? Does that mean that affirmative action is completely dead? This confuses me.

Scott Schneider 

Yeah, I mean, I’ll chip in. Jackie, I don’t want to monopolize the conversation. I don’t know that I was flabbergasted, but I certainly wasn’t… It was remarkable. Let me back up. So you have an organization called OFCCP, which basically its job is to police whether or not federal contractors are complying broadly with Title VII, but more importantly for purposes of this conversation with the Johnson Executive Order. And I’ll just say, without getting into details, I was in the midst of assisting a client with an OFCCP audit when this executive order was basically rescinded and it basically the practical impact was the audit went away. For my client that was good. Whether it’s good on the whole I don’t know there were some arguments about whether or not you could create, especially now, that sort of consequential bureaucracy merely via an executive order. So whether he rescinded it or not, there are already legal challenges in the pipeline to OFCCP’s authority, that it doesn’t come from statute, it comes from executive order, all that sort of stuff. The other thing with that affirmative action executive order is it’s mixing a lot of terms together. In reality, there wasn’t affirmative action in the sense that the most ardent proponents of affirmative action in the 60s contemplated, which was like quota base, that sort of stuff. That had been ruled illegal going back 30-40 years. It was basically a record keeping requirement where you would look to see are there areas where there’s disparate impact based on race and sex, and then put an institution in the position of having to explain, are there non race based reasons or sex based reasons to explain these statistical disparities? Which, you know, I think was a robust and good process. But there was affirmative action as the most robust ardence in the 60s and late 50s were and certainly the early 70s were advocating for that, for better or worse. That was something that was basically ruled unlawful going back to the 1980s.

Jackie Wernz

Yeah, I think when you look at what that order allowed or required. If you really dig down into it, it doesn’t, for example, as Scott’s saying, it doesn’t say you must balance your employment to look like your community or anything that I think what we would look at and say and what’s described in the article as, you’re not supposed to do that, right? So it’s not that. And I think to me, the rescission of it and the fact that we’re even having this conversation of, does that end affirmative action? The short answer is no, because I would say that the executive order wasn’t dealing with the kind of affirmative action that the courts set up the existence of. So it was creating, as Scott says, a new path, a sort of a path for federal contractors that they have to do these things, even if they aren’t showing those disparities that would justify affirmative action under case law. So, okay, that’s gone. It’s not required. But what I think is really interesting about this in sort of the irony of this whole moment is that all of this pushback on DEI, the rescission of orders, it’s really taken away from us legitimate tools, useful, lawful tools that were in existence for broadening opportunity. And I think that’s really what the executive order was doing it was saying you need to use these, you need to do recruitment, you need to look at your data, you should look at them and make sure you don’t have discrimination. And if you do, you should address it. Those are all things that I think educational institutions can do, should do. But some of those tools are being taken away from us because they become, I guess, because the overall movement drifted us into this outcome engineering. And that we know is bad and we shouldn’t do. But so there was a time when recruiting at historically Black colleges or visiting Hispanic speaking institutions or things like that to have outreach events was not problematic. No one would have said that was an issue. It wasn’t picking winners. It was just widening the pipeline, right? But now once demographic representation became the overt objective, then we are seeing that even legitimate outreach started to look like predetermination or unfair tipping of the scales in favor of someone based on their race. so, you know, in a sense, the left, and I say that, you know, not necessarily the political sense, but in this movement kind of burned its own bridge. And now we are, I think, finding a situation where, and that’s what you see in the executive order rescission, is you see not just you don’t have to do these things anymore that we said you had to do under the EO. It’s you better not do X, Y, and Z. And that I don’t think is legally supported. But as I say often, and I’m sure Scott does to his clients, the law isn’t all that matters. And public opinion, the waste of resources to defend against challenges, all of those things are real. And I think they are impacting how institutions are responding to these types of things.

Scott Schneider 

I tell my kids and my clients the law is the only thing that matters. Yeah. That’s the way I live my life too.

Eric Kelderman

Great advice.

Scott Schneider 

And look, the thing is, I feel old, I guess, and kind of tired. One of the things that’s interesting is we just don’t live, you know, I talked about the setup to the Civil Rights Act and why that’s an enduring piece of legislation is in part because it’s legislation. And we live in this space right now and we have for probably 15-20 years where we don’t legislate anymore. We don’t go through that process. And so what you get are administrations that take positions on the same piece of legislation, Title IX being a great example. And you had the Biden administration saying one thing about trans participation in athletics. And then the Trump administration says, no, pendulum’s way over here. And I kind of go, at some point, we need to have a hard reset on these sorts of things. We can’t like on the same piece of statutory text, whether it’s Title VII, Title IX, affirmative action obligations or not obligations, what’s permissible or what’s not. It’s going to, it’s needlessly complicating to say a new administration comes in and takes a 180 degree different opinion. At some point, like somebody’s going to say, I understand what our policy preferences are, right? And I understand the ends here, but there is some value in having an enduring, predictable, court supported legal regime here. And if we can’t get that, then we need to go through the process of actually passing legislation on a topic. And I may be hopelessly naive about that, but unless we do that hard reset… You know, Trump is not very popular right now. I’ve read the polling data. There is a real possibility that, you know, there will be another party coming in that is a reaction to Trump. And then every, all this compliance infrastructure that we’ve put in place to kind of comply with this moment, you have to flip it 180 degrees in the opposite direction, which it feels like we’ve been doing honestly for like 20 years now. And again, I just think it’s a product of this moment where we’re incapable of passing bipartisan legislation on really important topics. And there’s a political clamor to do something. And so the executive steps in and says, this is what we’re going to do. And for people that are alarmed by what Trump is doing, and there are tons of them, and in some cases, rightfully so. I say one of the things that’s important here is because of the way they govern is there’s nothing enduring about this, which is, I guess, maybe comforting to those people. But from the people in the trenches and universities and schools who have to comply and create programs and communicate those programs, man, when you just keep switching back and forth with each administration, it is very challenging.

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Eric Kelderman

Let me ask one more sort of technical issue and then I’d like to bring it back to some bigger picture questions. Another executive order from the President rejected the use of the disparate impact theory for the EEOC. And I think this is important in part because it seems to further the administration’s view that disparities are okay, essentially, that we can’t, you say, engineer outcomes. But I’d like to hear your thoughts on, again, going back to sort of what does all this mean for higher education? Is there any impact because of that?

Scott Schneider

Hey, can we just talk about what disparate impact means first of all?

Eric Kelderman 

Yeah, please. Yeah, let’s do that.

Scott Schneider

Because this is part of the thing that I find frustrating, our political conversation has all the nuance of the brick to the face, right? Yeah, so what disparate impact… and by the way, this is codified and this is statutory, this is in Title VII, it was amendment, I think they go back to 1988. Says is if you can have statistically significant disparate impact, in other words, we have biology professors, okay, at a university. And we look at the data and it just so happens that all of the biology professors are men who are white, right? And then you look out in the community in which this university is situated and you compare it to what you would expect to see if race wasn’t a factor, which is, you know, maybe some mix of Black, Hispanic, whatever. The case may be women biology professors. And so the first part is, can you show a statistically significant disparate impact between what you have on the ground in the population in your surrounding community. If the answer to that question is yes, wow, there is something statistically significant here, that’s not the end of the analysis. It doesn’t mean, now you have to hire minorities and women. What it does is compel you to explain why. What’s the legitimate business explanation for why we’ve arrived at this distribution of faculty members. And if you can do that in a way that’s racially neutral, sex neutral, all that sort of stuff, that’s the end of it. You’ve complied with the law. The flip of that is, and Jackie was just alluding to that, when you go through that process, you may conclude there’s no discrimination here. But man, there are some things we are doing in our pipeline programs and who applies and all that sort of stuff that we could do better to broaden to a more diverse crowd. And we’re going to take those steps to start doing that. And historically, that’s been, you know, okayed and approved. This administration is giving, I think, folks some unease about that. But I just want to frame what disparate impact is. It’s not just that there’s a difference and therefore you violated the law. That would be like a quota. We don’t have that. But when you have a statistically significant difference, it triggers an obligation at some level to explain the why.

Eric Kelderman

Great, yeah, really clear.

Jackie Wernz 

Yeah, and I think the important thing to, and Scott alluded to this, that this is a theory that is based in law. It’s based in case law. It’s based in the law itself. And so people can still bring lawsuits under this theory. And there can still be challenges. The EO said the EEOC is no longer going to pursue these things. And that’s important. But I really think, and I wrote about this a year ago, that the administration has done a beautiful job of what I call “regulation by intimidation.” And they have just, you know, they put out things that to normal people on the street, they say, well, President Trump outlawed, considering that. And that’s how a lot of people interpret it. And so what has happened here, I think, and I think this is kind of across the board, is that the focus of institutions on their civil rights responsibilities has diminished significantly. And to me, that is really scary because it’s dangerous for clients because they can still get sued and they are getting sued. The use of lawsuits as a tool has grown as the use of EEOC and OCR and other agencies has diminished. It’s really scary because those civil rights obligations don’t disappear just because there was an EO that says, we’re not going to enforce this anymore. And they don’t disappear because people say you can’t do DEI, even if legitimately we all maybe agree at this point that what was being done previously isn’t right under Title VII or other civil rights laws. It doesn’t mean that you don’t still have significant responsibilities under those laws, and I think that message is very much getting lost.

Eric Kelderman

I’d like to bring this to sort of full circle now and I want to go to another article that I read recently, this terrific piece in the Washington Post that looked at faculty diversity. I don’t know if either of you have seen this, but the conclusion from this piece was, and it was a terrific piece of data reporting, and it says the number of underrepresented faculty, this is increased by a third between 2015 to 2025. So the percentage of Black and Hispanic faculty grew from 9% to 12% over that time period. At the same time, of the 184 universities that made faculty diversity pledges, at least 108 have fully or partially rolled them back, according to a post survey. An additional 30 have renamed or reorganized their DEI offices, but not necessarily eliminated programming. And so I guess what I’m coming to the conclusion is here, the administration’s justification for these efforts are ostensibly their belief that white men are being discriminated against, right? That universities are now overwhelmingly only hiring women and people of color. There’s the implication, and I think a rather bold implication that any person of color, any woman who’s in a position of power, was a DEI hire, a diversity hire, and is unqualified. And at the same time, we look at the data from universities and we see that despite the decades of effort they put into this, the needle has barely moved. I just like your overarching thoughts on, on the one hand, we have the administration telling you you can’t do anything to increase the diversity of your faculty. And on the other, we have, and in response, we have institutions, as you point out, Jackie, sort of pulling back from these efforts, wholesale, because they fear lawsuits or some sort of period of action. And yet there’s really been no, there’s no evidence that these efforts, illegal as they may have been in some cases, have produced any noticeable results in diversifying the faculty. It’s an intractable mess to me.

Jackie Wernz

It is. And I mean, I think it really gets at the hard truth that structural reform is really difficult. And I think it gives you an explanation of why DEI went, I would say, off the rails a little bit, because DEI was working. It was getting people hired into positions who maybe might not have otherwise. And I would say that when we look at the numbers of faculty, although it hasn’t improved perfectly, I think in the article in the Chronicle, it talks about that there was some movement, positive movement under some of these DEI structures. And I think that’s why they were so alluring is because it really felt like they were working and then also that it’s very performative. And so institutions could say, or departments could say, but look, we are at least trying to do something about it. And I think what you’re getting at and what the Washington Post article are getting at is that this is a really hard issue and that we don’t even necessarily understand why faculty is so not diverse. And until we know that why, until we know, you know, what is the problem here? Is it pipeline development? Is it , you know, evaluation criteria? Is it the people who are on committees and the training they receive? Or what is merit? Or what qualities do you want? Until we know that, we can’t really fix the problem other than through outcome driven solutions like DEI. And I think that’s where everyone just feels so hamstrung, how are we supposed to address what we recognize is a real problem? My whole theory on this is that at a minimum, we have to go back to the idea of what these civil rights laws were put in place for, which is equal opportunity. And that what DEI really allowed us to do is to stop thinking about, is there discrimination? And I think we’re gonna have to go back to looking at Is there discrimination that is leading to these different populations? If there is, we need to address it. And I have lots of ideas about how institutions could take a part in this if they really wanted to. But I don’t know that they actually really want to because the main way that this happens is through transparency. If there was much more available transparent data of here are the people, not names, but here are the types of people who applied for every position at our institution this year. Here’s the grid of their qualifications that shows, like these are the factors we look at, and shows we’re making this decision based on merit, there’s no discrimination happening. The problem with that transparency is educational institutions don’t want to be sued, and if they put out that information, it is very likely that people who are looking for it will find evidence of discrimination and bias. And so again, that’s where I think we’re, you know, that’s why DEI was so alluring because it allowed institutions to try to take these steps to fix a problem without actually shining a light on themselves to say, maybe we’re part of the problem. Maybe there is still some discrimination that we need to root out.

Eric Kelderman

Scott, your thoughts?

Scott Schneider

Yeah, I don’t know that they have much to add. mean, the part of this, and I’ve seen, there’s no other way to, it is offensive. And I’m not easily offended, but you kind of alluded to it as, you know, any person in a position of power who is a woman or whatever, there is this sort of racial minority that, dubbing them a DEI hire is, you know, that’s abhorrent and offensive. And, you know, obviously needlessly glib, but, you know, certainly a culture-war-like talking point. I will say this, I work with a lot of universities in Texas, across the country. And, you know, when we’ve looked at the actual numbers, like when we were doing OFCCP plans, I will say higher ed, especially compared to other industries, is remarkably diverse. There were clearly in a lot of job categories pockets where you go, something feels a little off here. And again, historically, you don’t immediately jump to, well, somebody is discriminating on the basis of race or color or whatever. But it’s back to those kind of pipeline conversations. Number one, you know, what can we do if, you know, for historically underrepresented groups who aren’t getting these jobs to direct them into certain programs or make those available. And you’ve seen a lot of those efforts walk back under this administration. Are there things that we are doing in our hiring process that either in the solicitation of applications, who we’re advertising to, who’s on the search committee, what does that look like? What sort of questions are being asked that it’s leading to disparate impacts? Reevaluating those processes. And there was all that sort of work that could, that should, a good faith campus should be doing, right? We don’t want to, whether it’s intentional or subliminal, we don’t want to be discriminating on the basis of race or sex or color or whatever. And there are ways to approach that in a thoughtful and reasonable way. The flip became, I think, and this is where the Trump administration has kind of found its traction and has gone the other direction, is the mere existence of numbers that seem to be disproportionately white or male was by itself evidence of discrimination. And therefore warranted bringing in people purely on the basis of race and sex was at least, you know, the argument about some of the more haphazard ways in which DEI was being implemented. You know, there were really correct critiques of that approach. But again, it feels like a good university who wants to be fully compliant, operating in a manner consistent with their values here, the way to approach it, and this is the advice I give, is we’re constantly looking at who we’re hiring. If there’s something that just screams to us, wow, this doesn’t look right, it may be, you know, nothing we can do about it. It may just be a product of, you know, certain folks are attracted to this and certain people aren’t, whatever. But it is always an invitation to go, is there something about our process that is, you know, could be improved that is leading to this result. And sometimes you go, no, our process is really good. We’re diversifying the applicant pool, we’re advertising in all the right places. We’ve got a very diverse group on the hiring committee. It just so happens that everybody who is being hired, the most qualified people happen to be of a certain race or certain sex, and that’s fine. I’m just worried that we’re not under this administration, the pendulum has swung so far, that we’re afraid to touch the issue at all or look at it at all and make those kind of calls.

Jackie Wernz 

Yeah, we are not, educational institutions, they’re not doing audits the way they used to. They’re not even doing investigations the way they used to. I think there’s a fear that if you do anything related to a protected status, that it’s gonna shine a spotlight on your institution. And that is really problematic, because as Scott says, that’s the best way to see if you have a problem, is to regularly check to see if you have a problem. And I think there very well may be the case that if we were checking that we might find that some of the reasons that faculty aren’t as diverse as we want them to be are deeply rooted in our society and are things that cannot be fixed by an educational institution alone. And I don’t think that would be a bad conclusion to come to necessarily. I mean, I get on this soapbox a lot when it comes to Title IX. I think the reason that educational institutions have been thrust into this miserable position of adjudicating sexual assault complaints between students and other members of their community is because our law enforcement structure doesn’t address that behavior in any meaningful way. And so it leaves a vacuum and schools are being forced to fill that vacuum. And I think that is happening here to some extent as well, that if we were to look at deeply rooted societal factors that maybe help explain why there are fewer people going into the academics, academia, on a particular topic, you might find them.

Scott Schneider

Yeah. And I’ll just close with this on this topic is, I think anybody who’s practiced in this space and is reasonable and fair minded, Title IX, all the issues we’ve been talking about, realizes, man, these are super complicated issues. And the one thing the Trump administration has done, again, you do not categorize this as conservative in any meaningful sense, is in these super complicated areas, whether it’s it’s the tension between First Amendment and antidiscrimination obligations or diversity or sex misconduct is they have opened up the specter of we’re gonna pull federal funds. And I go, man, the idea, and I had a really robust discussion with somebody about this professor. I said, you know, my position is once you start doing something from a compliance standpoint, it’s hard to walk it back. A new administration will seize upon this and have different priorities and we’ll be off to the races a different way. I said that, by the way, when Catherine Lhamon did the Dear Colleague letter and more importantly, kind of her whole approach. I was like, well, this is new and different. And it was super effective in achieving certain policy ends. But then I was going, and now you’ve opened up a Pandora’s box that a subsequent administration with different compliance priorities will reach different conclusions. And this second Trump administration has basically said to the 2011 Dear Colleague letter, all that sort of stuff, hold my beer. It’s like, yeah, no, we’re going to pull federal funding. We’re going to tie up, like a place like Harvard or whatever. I go, okay, at some point this administration will end. But that tactic will remain. And in a really sensitive, complicated space, we’re going to be swinging the pendulum back and forth. So, anyway…

Jackie Wernz 

Yeah, good education lawyers like Scott and I hope like myself too. The way you know that you are doing a good job is if whatever administration is in charge, they think that you are anti-them, right? So I wrote about OCR, what I called their “shadow docket” in, under Catherine Lhamon back in September of 2024 on my blog and talked about how they were stretching OCR’s authority to get outcomes that I didn’t think were justified. And yeah, think that the Trump administration came in and said, hold my beer. That is the perfect description because they were like, oh, you’re gonna do that? Let’s see what we can do.

Scott Schneider

And if Eric, you want to come to New Orleans in a couple of days for Mardi Gras, I can hold your beer.

Eric Kelderman

Well, that might be difficult because I might want to hold my own beer at that point.

Scott Schneider

That’s why I like you. You’re very self reliant. That was so good. Thank you.

Eric Kelderman

I’m gonna, I’m waiting for the email that I’m gonna get when this episode comes out from Catherine Lhamon who wants to come on and defend herself in, in our podcast.

Scott Schneider

Well, I would love that conversation. I think it’d be great. 

Eric Kelderman

It would be great. I don’t have anything else for you guys. Anything else you want to talk about?

Scott Schneider

No, man, I’m just, so today just, it’s Friday before the penultimate Mardi Gras weekend. We’re gonna go out to a parade in the French Quarter, probably in about an hour. So it’s about 11 o’clock in the morning.

Eric Kelderman

All right, don’t forget to hydrate.

Scott Schneider 

Yeah, I have already forgotten that hydrate. It’s like, it’s all coffee this morning at this point and then we’ll just go out and have a good time. Yeah, nothing else legally I want to talk about. It was great to catch up with Jackie. She’s great.

Eric Kelderman

Jackie, what are you up to this weekend? What are you looking forward to?

Jackie Wernz

We’re actually moving in a week, so I’m gonna spend the weekend packing. But I will maybe hold a beer, while I do it, and at least be able to think of you two while doing that.

Eric Kelderman

Okay, good. Awesome.

Scott Schneider

What do you have to do this weekend, Eric?

Eric Kelderman

My never ending home improvement project in my basement continues. There may be some alcohol related remediation at the end of that. And then, you know, I’m going to watch the Olympics. I love the pageantry and the athleticism, and that’s going to be fun. So very low key for me.

Scott Schneider

I, literally, I swear man, religiously. on my Roku, anything curling related, I’m on it man. I’m like, this is wild.

Eric Kelderman

In our minds, this is the one sport that you and I could conceivably compete in, right?

Scott Schneider

That’s exactly the allure.

Eric Kelderman

The truth is, we would not have, we would be, it’s impossible in a way. 

Scott Schneider

That’s your opinion, man. I don’t believe that for a second. 

Eric Kelderman

That’s just your opinion, says the dude, yeah. 

Scott Schneider

Yeah. Yeah. Man, what are you, like, killing my Olympic dream? Thank you so much.

Jackie Wernz 

Well, we are obsessed with ice dancing. I don’t know if you’ve been watching the ice dancing drama, but it has been incredible. And there is a married couple who are American ice dancers and are phenomenal. 

Eric Kelderman

Chock and Bates, yeah. 

Jackie Wernz 

And I keep saying to my husband, like, why do we have problems ever doing anything together? These people are married and they get out there and they’re perfect together. So, couple goals.

Eric Kelderman

They’re married for now. For now they’re married, but after winning the silver medal, we don’t know what’s going to happen. That tension might just blow the whole thing up. We don’t, we don’t, we’re not looking for that. We’re not hoping for that.

Jackie Wernz

No, no.

Scott Schneider

There was some skater, this was my last Olympic comment, and they were like, his nickname is the Quad God.

Jackie Wernz

Yeah.

Eric Kelderman

Yes, Ilya Malinin, who is a sophomore at George Mason, I believe, actually, from Fairfax, Virginia.

Scott Schneider 

Wow. I’ve never been called the Quad God, but that would be cool.

Eric Kelderman

Next episode we’ll go into Scott’s previous nicknames and what they signify.

Jackie Wernz

I’m glad we didn’t do that one.

Scott Schneider 

Yes, thank you. Yes, me too. Anyway.

Eric Kelderman

Alright. That’s a wrap, folks. Thanks, everybody. Appreciate your time. Great talking with you both, and I really appreciate your time today, Jackie. Thanks.

Scott Schneider

Alright man.

Jackie Wernz 

Absolutely, it was really fun.

Scott Schneider

There you go. Well, look, thanks for tuning into Campus Docket. You’ll find links to everything we discussed today, including related cases, articles, and a full transcript, and the show notes, and on voltedu.com. Be sure to follow Campus Docket wherever you get your podcast. And while you’re there, check out Trusted Voices and Higher Voltage, two more podcasts in the Volt lineup that look at higher ed through different lenses. On behalf of the Volt team and my friend, Eric Kelderman, Thanks again for listening, we’ll see you next time.