The announcement of U.S. Department of Health and Human Services (“HHS”) and the U.S. Department of Education (“ED”) of race discrimination investigations into Harvard University and the Harvard Law Review (“Harvard”) highlights the challenges of managing race and other discrimination risks that health care, education and other organizations continue to face under the Trump Administration’s “merit-based” interpretation and enforcement of the Equal Protection Clause of the U.S. Constitution, the Civil Rights Act of 1964 (the “CRA”) and other federal civil rights laws (collectively the “Civil Rights Laws”).
New Direction On DEI, Affirmative Action Under Civil Rights Laws Enforcement
Supreme Court ruling precedent long has interpreted the Equal Protection Clause of the 14th Amendment and the discrimination prohibitions of the Civil Rights Laws as prohibiting DEI, affirmative action, and other similar race, sex, or nationality-based preferences except in narrow circumstances to promote compelling government interests judged under a strict scrutiny standard.
Along with the 14th Amendment, the Civil Rights Act prohibits discrimination on the bases of race, color, and national origin in programs and activities receiving federal funding from HHS, ED or other federal agencies. Section 1557 extends these prohibitions to programs funded by HHS. Institutions violating these Civil Rights Laws can lose federal funds, face discrimination lawsuits or both.
The Civil Rights Laws prohibit discrimination without making exception for preferences to address historical disadvantage affecting the ability to compete on merit. Nevertheless, past Executive Orders and federal regulatory and enforcement policy since the earliest days of the Civil Rights Act have encouraged or required organizations to use affirmative action, DEI, and other practices of applying preferences to enhance opportunities for individuals from racial or other groups perceived as disadvantaged in their ability to compete under merit or other selection criteria by past or current discriminatory bias. The Trump Administration has broken ranks with the historically tolerated practice of using DEI, affirmative action or other preferences to promote opportunities for certain groups perceived as historically disadvantaged.
Upon taking office in January, President Trump in his January 21, 2025 Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“EO 14173”) directed federal agencies to interpret and enforce the Civil Rights Act as requiring merit-based decisions without application of preferences for diversity, equity and inclusion,” (“DEI”), “affirmative action” or other favoritism to particular groups.
In EO 14173, President Trump announced his interpretation of the equal protection and opportunity provision of the 14th Amendment of the U.S. Constitution, the Civil Rights Act of 1964 (“Civil Rights Act “), Section 1557 of the Patient Protection and Affordable Care Act of 1996 (“Section 1557”) and other federal civil rights laws as guaranteeing “merit-based” decision-making and prohibiting DEI, affirmative action and other non-merit-based race, sex, religious, national origin preferences. Consistent with this merit-based construction, President Trump ordered all federal agencies “to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements” and “to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
On April 23, 2025, President Trump followed up on EO 14173 by ordering all federal agencies to stop treating disparate impact as a viable theory of liability in discrimination matters in Executive Order on Restoring Equality of Opportunity and Meritocracy.
HHS/ED Harvard University Enforcement
HHS, ED, and other federal agencies have moved quickly moved to open several prominent universities and other organizations known for their longstanding promotion of DEI practices.
The April 28, 2025 announcements of openings of discrimination investigations of Harvard by both HHS and ED of race discrimination investigation of both reports of race-based discrimination permeating the operations under Title VI of the Civil Rights Act of 1964 (“Title VI”) in response to information HHS and ED received about policies and practices for journal membership and article selection.
HHS’ and ED’s OCR investigations respond to reports of potential application of preferences in violation of EO 14173.
The Harvard Law Review’s editor reportedly wrote that it was “concerning” that “[f]our of the five people” who wanted to reply to an article about police reform “are white men.” Another HLR editor suggested “that a piece should be subject to expedited review because the author was a minority.”
Based on these reports, HHS and ED suspect Harvard Law Review’s article selection process ‘picks winners and losers on the basis of race, employing a spoils system in which the race of the legal scholar is as, if not more, important than the merit of the submission.
According to HHS and ED, these types of considerations based solely on race are illegal and unacceptable for recipients of federal funding.
“Law journal membership and publication are crucial achievements that build momentum for law students’ careers and shape legal scholarship,” said Anthony Archeval, Acting Director of HHS Office for Civil Rights. “This investigation reflects the Administration’s common-sense understanding that these opportunities should be earned through merit-based standards and not race.”
Acting Director Archeval warned, “Title VI’s demands are clear: recipients of federal financial assistance may not discriminate on the basis of race, color, or national origin. No institution—no matter its pedigree, prestige, or wealth—is above the law. The Trump Administration will not allow Harvard, or any other recipients of federal funds, to trample on anyone’s civil rights.”
The apparent triggering of the investigations based on “reports” of statements suggesting race bias of a nature often expressed within certain segments of many organizations highlights the challenges covered organizations are likely to experience in negotiating civil rights compliance. Health care, academic medicine and other organizations continue should ensure their merit based criteria and their underlying business justifications are clearly defined and defensible intheir form, design and administration.
In the face of these and other enforcement actions, health care, education and other federal government contractors and grant recipients must move quickly to evaluate their risks, adjust their policies and practices and explore other additional options to mitigate their potential risks and liabilities to government and private enforcement based on the policy shift. Givcn the sensitivity of exposures from past, current and future practices and the nature and significance of the liability involved, entities at risk should uses care to ensure that this evaluation and their discussions of assessed risks and proposed responses are conducted with the assistance of qualified legal counsel and within the scope of attoney-client privilege.
If you have questions about this or other health care concerns, contact the author.
For More Information
We hope this update is helpful. For more information about the or other health or other employee benefits, human resources, or health care developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Peer recognized as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in Health Care Law, Labor and Employment Law; ERISA & Employee Benefits,” and “Business and Commercial Law,” Cynthia Marcotte Stamer is an A Martindale-Hubble “AV-Preeminent” (Top 1%) attorneys board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for her more than 35 years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications including leading edge work on PBM, pharmacy and pharmaceutical and other health care, managed care, insurance, and insured and self-insured contracting, design, administration and regulation..
Author of numerous highly regarded works on PBM and other health plan contracting and design, Immediate Past Chair of the ABA International Section Life Sciences Committee and the Tort Trial and Insurance Practice Section Medicine and Law Committee, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and past Group Chair and current Welfare Benefit Committee Co-Chair of the ABA RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is most widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on health and other privacy and data security and other health industry legal, public policy and operational concerns.
Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As a part of this work, she has continuously and extensively worked with domestic and international health plans, their sponsors, fiduciaries, administrators, and insurers; managed care and insurance organizations; third party administrators and other health benefit service providers; hospitals, health care systems and other health care providers, accreditation, peer review and quality committees and organizations; billing, utilization management, management services organizations, group purchasing organizations; pharmaceutical, pharmacy, and prescription benefit management and organizations; consultants; investors; EMR, claims, payroll and other technology, billing and reimbursement and other services and product vendors; products and solutions consultants and developers; investors; managed care organizations, self-insured health and other employee benefit plans, their sponsors, fiduciaries, administrators and service providers, insurers and other payers, health industry advocacy and other service providers and groups and other health and managed care industry clients as well as federal and state legislative, regulatory, investigatory and enforcement bodies and agencies.
She also has extensive experience helping health care systems and organizations, group and individual health care providers, health plans and insurers, health IT, life sciences and other health industry clients prevent, investigate, manage and resolve sexual assault, abuse, harassment and other organizational, provider and employee misconduct and other performance and behavior; manage Section 1557, Civil Rights Act and other discrimination and accommodation, and other regulatory, contractual and other compliance; vendors and suppliers; contracting and other terms of participation, medical billing, reimbursement, claims administration and coordination, Medicare, Medicaid, CHIP, Medicare/Medicaid Advantage, ERISA and other payers and other provider-payer relations, contracting, compliance and enforcement; Form 990 and other nonprofit and tax-exemption; fundraising, investors, joint venture, and other business partners; quality and other performance measurement, management, discipline and reporting; physician and other workforce recruiting, performance management, peer review and other investigations and discipline, wage and hour, payroll, gain-sharing and other pay-for performance and other compensation, training, outsourcing and other human resources and workforce matters; board, medical staff and other governance; strategic planning, process and quality improvement; meaningful use, EMR, HIPAA and other technology, data security and breach and other health IT and data; STARK, ant kickback, insurance, and other fraud prevention, investigation, defense and enforcement; audits, investigations, and enforcement actions; trade secrets and other intellectual property; crisis preparedness and response; internal, government and third-party licensure, credentialing, accreditation, HCQIA and other peer review and quality reporting, audits, investigations, enforcement and defense; patient relations and care; internal controls and regulatory compliance; payer-provider, provider-provider, vendor, patient, governmental and community relations; facilities, practice, products and other sales, mergers, acquisitions and other business and commercial transactions; government procurement and contracting; grants; tax-exemption and not-for-profit; privacy and data security; training; risk and change management; regulatory affairs and public policy; process, product and service improvement, development and innovation, and other legal and operational compliance and risk management, government and regulatory affairs and operations concerns. to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement; and other strategic and operational concerns.
Author of a multitude of highly regarded publications and presentations, Ms. Stamer is widely recognized for her thought leadership on these and other health care, managed care and other health plan,and other health industry matters. In addition, Ms. Stamer contributes her time and leadership to numerous policy, professional, civil and other organizations including service as the, the American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting and a former Council Representative, Past Chair of the ABA Managed Care & Insurance Interest Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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