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Photo by Shelby Murphy Figueroa on Unsplash
The Future of DEI in Higher Education: Unpacking Recent Federal Restrictions
Jun 18, 2026
This nonpartisan policy brief, written by an ACE fellow, is republished by The Fulcrum as part of our partnership with the Alliance for Civic Engagement and our NextGen initiative — elevating student voices, strengthening civic education, and helping readers better understand democracy and public policy.
Key Takeaways
- Diversity, equity, and inclusion (DEI) programs serve diverse student populations at colleges and universities across the nation. DEI programs in higher education have traditionally supported first-generation college students, students with disabilities, veterans, low-income students, and racial and ethnic minorities through offices, scholarships, cultural centers, and accessibility services.
- Federal initiatives, such as TRIO or the Full-Service Community Schools program, are facing cuts to funding due to DEI-related federal policy, affecting students across the nation.
Defining DEI
From debates surrounding race-conscious admission policies to questions about the role and funding of identity-based student centers, Diversity, Equity, and Inclusion (DEI) has become a widely debated topic in higher education policy. DEI refers to institutional policies and programs–such as mentorship opportunities, cultural centers, and support programs–which improve campus climate and student access for underrepresented groups. Though many colleges and universities across the United States have developed DEI initiatives aimed at shaping student access and institutional priorities, recent legal and policy developments have raised questions about how these efforts align with federal law.
Federal DEI Initiatives in Education
Understanding DEI in higher education requires examining its connection to longstanding civil rights laws defining nondiscrimination requirements and the federal government’s role in oversight and enforcement. The Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in programs receiving federal funding. Similarly, Title IX prohibits discrimination based on sex and the Americans with Disabilities Act requires institutions to provide accommodations and ensure access for individuals with disabilities. These laws form the foundation of federal nondiscrimination policy in education, shaping how institutions design policies and programs related to access and participation and the expansion of DEI initiatives across higher education.
As federal civil rights laws were implemented, they set nondiscrimination requirements and shaped how colleges and universities created accessible, supportive campuses. Federal agencies like the U.S. Department of Education interpreted these laws, issued guidance, and responded to complaints of unequal treatment while institutions developed programs and policies that supported student participation and improved campus experiences. These efforts gradually became more formalized and grouped under the broader umbrella of DEI initiatives.
The role of these initiatives has recently come under increased legal and political scrutiny focused in part on programs considering race as a factor in decision-making. This debate intensified following Students for Fair Admissions v. Harvard (2023), in which the Supreme Court decided that race-conscious admissions policies are not permissible under the current interpretations of federal law.
How Are Cuts to DEI Programs Impacting Universities?
President Trump’s executive order characterizing DEI programs as “illegal and immoral discrimination” has led to over 400 colleges and universities eliminating or rebranding their DEI programs. MOST Policy Initiative finds that this change affects dedicated offices, chief diversity officer positions, diversity training, cultural centers, accessibility services for students with disabilities, support for first-generation students and faculty members’ perceived academic freedom. PBS News reports that universities face billions in cuts and freezes, with Columbia University losing $400 million and Johns Hopkins cutting 2,000 jobs after losing over $800 million in federal grants. Higher Ed Dive and Campus Reform have also reported large scale cuts such as the University of Florida’s closing its Office of the Chief Diversity Officer and laying off all DEI-related employees; the University of North Carolina system’s suspension of all general education and major-specific requirements tied to DEI; and the closure of cultural centers, living-learning communities for certain demographic groups, and other student support spaces.
How Are Cuts to DEI Programs Enforced?
Enforcement mechanisms for DEI cuts are based on a February 14, 2025 “Dear Colleague” letter issued by Acting Assistant for Civil Rights Craig Trainor. The letter warned that federal law “prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life” promising to cut federal funding from any institution found in violation and giving schools until the end of February to end all practices related to DEI. Its stated purpose was to “provide clarity to the public regarding existing legal requirements” under the Supreme Court’s decision in Students for Fair Admission v. Harvard (2023) and Title VI of the Civil Rights Act,which prohibits racial discrimination in federally financed programs..
Beyond program eliminations, the Trump administration has pursued enforcement by investigating universities and threatening to remove their funding. In 2025, Inside Higher Ed reported that the State Department proposed suspending 38 universities–including Harvard, Yale, and Duke–from its Diplomacy Lab program over alleged “clear DEI hiring policies,” though it remains unclear how the department determined which institutions met this criteria or what specific practices constitute violations. In March of this year, CNN reported that the Justice Department opened investigations into the medical schools at Stanford University, Ohio State, and UC San Diego for possible race discrimination in admissions, requesting seven years of detailed admissions data on admitted students’ race, MCAT scores, and information on diversity policies.
The threat of investigations leads some universities to pay costly settlements. US News reports that Columbia University agreed to pay $200 million over three years and commit to not promoting “unlawful DEI goals” to restore access to billions in frozen federal grants. Harvard University rejected similar demands after facing a $2.2 billion grant freeze, refusing to reform hiring practices, restructure governance, or end DEI programs. These contrasting approaches demonstrate the difficulties universities face when choosing between accepting costly settlements with program restrictions or forfeiting billions in federal research funding.
How are Program Cuts Changing Cross-Sectoral DEI Policy?
Several DEI programs run by non-profits have ended their collaboration with universities and other partners as an indirect result of the Trump administration’s policies. The PhD Project, a non-profit that aids students of color in obtaining doctoral degrees, saw its collaborations with 31 universities end after the Trump administration classified their work as racially discriminatory. Following investigations by the Office of Civil Rights, those same universities agreed to review their collaborations with all external organizations to ensure that none violated the Trump Administration’s classification of discrimination.The State Department’s Diplomacy Lab, a program that allows students and educators to research foreign policy crises, faced similar scrutiny. The lab was forced to rework their university collaborations after a number of projects were classified as DEI initiatives by the federal government. These actions show that DEI programs are least supported in educational environments that receive direct federal funding.
Cuts to programs like the above have made programs run outside of the federal umbrella all the more impactful. While nonprofits, public universities and K-12 schools that receive federal funding have guidelines for abiding by federal regulations, private sector programs are largely able to set their own agendas. For example, Ben and Jerry’s commits to DEI programs that dismantle systems of inequality while the W.K. Kellogg Foundation provides private sector stakeholders with DEI training and programming.
As programs intended to combat inequality and prejudice are forced out of publicly funded spaces, the demand for them is greater within the private sector, where the Trump administration’s pursuits against DEI are cultural, not legal. While these programs have always existed in the private sphere, the scaling back of public sector DEI programs makes those run by private organizations even more significant.
How are DEI Cuts Impacting Federally Funded Programs?
The TRIO Program is a federal grant program that identifies and provides services for individuals from disadvantaged backgrounds, named for its original three initiatives: Upward Bound, Talent Search, and Student Support Services. Recipients of these grants include higher education institutions, public and private agencies, and community-based organizations predominantly serving disadvantaged youth. In the fall of 2025, the Trump administration delayed funding for thousands of TRIO programs and canceled nearly 100 grants, affecting over 43,000 students. This resulted in the cancellation of several educational resources and services as well as staff layoffs at colleges that administered TRIO programs. While the administration reinstated funds earlier this year following a federal court order and increasing political pressure, it reaffirmed its stance that TRIO programs are no longer a priority of the federal government.
The Full Service Community Schools Program provides educational institutions with grants to improve the facilities, accessibility, and effectiveness of school services, particularly in high-poverty areas. In December of 2025, EducationWeek reported that 19 grantees received non-continuation letters, losing funding for their programs because they had included DEI initiatives. These cancellations totaled a $168 million cut affecting schools across the country.
DEI cuts have also impacted governmental branches themselves. The Department of Education underwent internal changes related to DEI councils and programs, dissolving its Diversity & Inclusion and Employee Engagement Diversity Equity Inclusion Accessibility Councils, removed over 200 web pages that had DEI content, and discontinued the Department’s Equity Action Plan. President Trump has also signed an executive order asking federal contractors and their subcontractors to terminate DEI inclusion initiatives. If contractors fail to comply, agencies have been granted the authority to cancel or suspend contracts.
Limitations to Program Cuts
Though the Trump administration’s efforts have significantly changed the way that organizations and schools can sponsor DEI initiatives, its cutbacks have not proceeded without limits. ChalkBeat reports that the “Dear Colleague” letter’s ambiguous language created confusion on campuses about schools’ compliance responsibilities, resulting in legal challenges alleging that the letter infringed on free speech and free association rights, violated existing civil rights law, and failed to follow required administrative procedures for changing federal policy. Federal judges blocked the Department from enforcing the Dear Colleague letter on three separate cases and entirely invalidated the guidance almost a year later. However, institutions should not interpret this as a full retreat from federal DEI scrutiny. The DOJ’s July 2025 guidance memo covering the same substantive ground under Titles VI, VII, and IX continue to inform federal enforcement priorities, meaning the practical compliance pressure on institutions largely remains intact.
Overview of Popular Arguments and Future Outlook
As reported by The Heritage Foundation and The American Mind, opponents of DEI deem it a waste of taxpayer money which fails to promote racial tolerance and an end to racial tension while spreading misinformation about racial discrimination’s function in America. Therefore, they claim it is not worth investing federal dollars in. On the other hand, advocates argue that DEI initiatives are extremely important to prevent prejudice on an individual level and keep people informed about America’s legacy of systemic discrimination. They believe it fosters inclusion and empowers people from underrepresented or marginalized groups.
The future outlook surrounding DEI cuts at universities is uncertain as universities have responded inconsistently. Some have eliminated offices entirely, while others have rebranded them as “inclusive excellence” or “belonging” offices. These measures ensure that diversity work can continue under different terminology and that students in need of assistance can still access those resources.
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The Future of DEI in Higher Education: Unpacking Recent Federal Restrictions was first published by ACE and was republished with permission.
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Why many young men feel politically and socially adrift, how changing gender roles affect masculinity, self-esteem, relationships, and the future of society.
Maskot / Getty Images
Lost Boys - What Is the Role of a Man in Today's Society?
Jun 17, 2026
A recent New York Times article stated that young males who provided an important swing vote for Trump in 2024 are discouraged by what Trump has done and not done while in office. But they are nevertheless not particularly inclined to vote Democratic because they don't see the Party as welcoming their view of masculinity and they don't know where they fit in this society.
These young men assume that because the Party supports equality for women in the workplace and because many young women no longer have marriage and having children at the top of their agenda, the Party would not be a welcoming home for them. They see themselves as striving for the masculinity of their fathers' or grandfathers' day, where the man was the breadwinner in the family and had respect and authority. Not the weaker half in relationships with women.
That young men feel discomfort towards the Democratic Party and most likely towards women who want to be more than a traditional homemaker says more about the failings of our society and our schools than it does about these young men.
While the role of men has definitely changed and will never return to what it was even 50 years ago, there is no reason why men cannot have positive self-esteem about their new role and be empowered by it. But the messages they receive about masculinity from their families, the media (e.g., action movies), and elsewhere (e.g., Trump's attitude towards women) reflect an out-of-date perspective. And so they are stuck.
First, young men should know that in the majority of marriages (55%) today, although the female may be working—as she has increasingly been doing for the past 60 years—the male is still the primary breadwinner. In those marriages, much has not changed—as breadwinner and father of the children, he typically has authority ... but not absolute. Even in these marriages, the wife is likely not subservient to her husband. That is the past.
In the 29% of marriages where both spouses earn similar salaries or the 16% where the female is the primary breadwinner, there are obviously adjustments—both mental and practical—that men need to make. The issue is one of self-esteem.
What is self-esteem? Part of self-esteem is dependent on a person's expectations of himself—which typically come from the society around him, whether his family as he was growing up or the broader society. If a boy's expectation based on his upbringing is that to be a male is to be a traditional husband, breadwinner, and father who rules the roost, then he will have problems in female relationships and many of today's marriages. On the other hand, if he expects that he will be part of a team, then his self-esteem in a modern marriage can be high.
The other element of self-esteem is a function of the respect or lack thereof that someone is shown. Respect is a two-way street. If a man wants to receive respect in today's world, he must show respect to his wife/partner. The domineering husband/father is a cliché of the past that didn't work well then and certainly wouldn't work well today.
But I don't get the feeling that these young men are looking to be that type of man—domineering. What they do want is respect. And they don't feel they are getting it in today's world, where women are definitely competitors in the job market and where women are much more self-assured than they were in the old days when getting married was a woman's only ticket out of spinsterhood.
The question then is, how do we train boys and girls for this new environment? Since children get their expectations from their family, peers, and the media—and these sources often promote past ideas of masculinity—it will be up to schools to devise programs to train children for their current roles. Schools must return to their in loco parentis role.
Boys will have to be trained to view masculinity as not being defined by unquestioned control and authority but as acting as a team, whether it's with a wife or co-worker. And boys will have to be trained to show respect to women as well as male colleagues.
Girls will likewise need to be trained. Instead of feeling chafed and limited by marriage and family and having an attitude about their independence, girls should also be trained to be partners in their relationships as well as with colleagues. And they likewise need to be trained to show appropriate respect. For girls as well as boys, feeling strong does not mean lording it over others or being dismissive.
Both would receive mostly the same type of training; they just have different starting points. Both should learn how their acting as a team is empowering and that by showing respect, you will receive respect, which everyone seeks.
The retraining will be far more difficult for young adults, as their expectations have already been formed and they are not part of a group that could facilitate retraining. Somehow, however, these lost boys need to be trained to change their expectations and be empowered by that change. And young adult women need to be trained to play their role in this new environment while showing appropriate respect to males and not seeing marriage and children as a threat to their independence. This role modeling will probably have to take place in the media.
Both males and females should also know the following. It has generally been assumed for decades that the children of working mothers are negatively impacted in their learning, emotional development, and how they do in school and in life. However, research has shown that not to be the case. It is the quality of time rather than the quantity that makes the difference.
This information is critical for couples deciding whether to have a child or children—that it is the quality of parent-child contact that makes the difference, not the quantity. So the fact that the wife wants a career is not a detriment to her having children if her time with them is high quality. Children need to be trained on the importance of quality time as well, as their family experience is often not a good role model.
And what role does the Democratic Party play in this matter? The Party really can't do much to address this issue, other than arranging for government education grants that encourage the development of such programs in the schools.
But what they can do directly is talk about this issue. Show these young men that they understand how they feel, but that that feeling is based on a conflict between the past and the present—and future. That if they adjust their definition of masculinity, then they will prosper in this new world and have the marriages and children that they desire. For example, if they stop acting like an arch male, modern women will be more attracted to them and see them as the father of their children. Young women must be spoken to as well.
Bottom line, it is no small wonder that young adult men feel adrift and confused. They were psychologically raised to fit into a world that doesn't exist anymore, and current popular role models often support an exaggerated and anachronistic view of masculinity. It is for society and the Party to help these young men adapt to the modern order and so prosper.
Ronald L. Hirsch is a teacher, legal aid lawyer, survey researcher, nonprofit executive, consultant, composer, author, and volunteer. He is a graduate of Brown University and the University of Chicago Law School and the author of We Still Hold These Truths. Read more of his writing at www.PreservingAmericanValues.com
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NECHAMA volunteers in Western North Carolina after Hurricane Helene.
Showing Up and Staying: Disaster Relief in an Age of Distrust
Jun 17, 2026
As the Atlantic hurricane season officially began on June 1, disaster response organizations across the country are preparing for the next storm. That preparation includes coordinating logistics, purchasing supplies, training volunteers, and strengthening partnerships. It now also requires planning for an environment shaped by misinformation, distrust, and competing narratives.
A recent 60 Minutes segment examining extremist groups in disaster zones highlighted how quickly public perceptions can form after a disaster. Recovery efforts are now followed by outside groups and online networks attempting to influence how events are understood while communities are still in crisis.
The segment highlighted a reality many disaster response organizations have increasingly encountered: disaster zones are no longer only spaces for physical recovery. They are also environments where information moves quickly, emotions run high, and public perception can form before recovery is completed. In the 60 Minutes segment, Henderson County, North Carolina, Sheriff Lowell Griffin warned that this may become “the new normal” for disaster response.
Fear, uncertainty, and isolation create fertile ground for misinformation after disasters. In moments when communities are struggling to make sense of loss and disruption, narratives can spread quickly, often filling the vacuum before facts and recovery efforts have had time to take shape.
We saw this during NECHAMA’s deployment after Hurricane Helene in Western North Carolina. Volunteers from Jewish communities across the country worked alongside local churches, civic groups, and community organizations to clear debris, muck homes, and support families recovering from the storm. At the same time, online misinformation about both the disaster and recovery efforts circulated widely, often disconnected from conditions on the ground.
Disaster response now happens both on the ground and online, where recovery efforts and public narratives develop at the same time. In highly visible moments of crisis, volunteers become ambassadors of trust. Their presence shapes how communities understand who is showing up and whom they come to trust during uncertain times.
NECHAMA volunteers work alongside local residents during recovery efforts in Western North Carolina.
In many of the communities NECHAMA serves, our volunteers may be among the first Jewish people local residents have ever worked beside. In others, NECHAMA may be the only Jewish organization that people encounter during a time of crisis. Those interactions matter. Trust is often built not through statements or slogans but through direct experiences and shared work during difficult moments.
This does not mean disaster response should be reframed primarily through the lens of public relations. The core mission remains helping communities recover after disaster strikes. NECHAMA means “comfort” in Hebrew, and that commitment is reflected through direct service and long-term recovery work in partnership with local communities.
As storms grow more destructive and recovery becomes more complex for vulnerable communities, organizations are operating in environments where misinformation can spread rapidly and public trust can become fragile. That reality makes partnership, consistency, and long-term presence even more important.
For volunteers, showing up is only the beginning. Communities remember the people who work beside them, listen to their stories, and remain engaged after headlines fade. In an age of distrust, service itself becomes an act of relationship-building.
NECHAMA’s work has always been grounded in service: showing up, working alongside local communities, and remaining committed long after media attention fades. In moments of crisis, communities remember who showed up and who stayed.
Stephan Kline is Chief Executive Officer of NECHAMA – Jewish Response to Disaster.
Tzlil McDonald serves as Project Director, Combating Antisemitism, leading interfaith outreach efforts in Western North Carolina and beyond.
For more information, contact: stephan.kline@nechama.org or tzlil@nechama.org
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Black and white illustration of voters
State Court Report
How State Courts Can Help Deflect the Supreme Court’s Latest Blow to Multiracial Democracy
Jun 17, 2026
With its April ruling in Louisiana v. Callais, the Supreme Court delivered yet another blow to the Voting Rights Act, specifically Section 2, which governs race in redistricting. The decision was sad and utterly predictable, but still nothing short of astonishing. Justice Samuel Alito wrote for the Court’s conservative supermajority, stealthily setting aside 40 years of legal precedent under Section 2 largely on the belief that racism is a thing of the past and extreme partisan gerrymandering is, in effect, a fundamental right of state lawmakers. Callais had a tortured path to the Court, a feature of the case that has undoubtedly been eclipsed by the lawless nature of the ruling itself, all of which reveals that the Supreme Court represents the gravest threat to multiracial democracy in the United States. (I argued as much in a law review article, predicting the outcome and analyzing the ways a Court gone rogue might get to that ruling.)
What’s more? In recent years, the Court has played fast and loose with a “principle” purportedly meant to limit chaos around elections, known as Purcell. But instead of limiting chaos, the Court’s Purcell jurisprudence will hasten and aggrandize the already-problematic impact of the Callais ruling. As the nation’s redistricting wars inevitably continue — in this election season, the 2028 presidential campaign, and even the next decade — state courts can help stave off democratic erosion by resisting the urge to invoke Purcell.
The eponymous Purcell principle, which dates back to 2006, stands for a few broadly defensible propositions. Courts presiding over election litigation must proceed with caution in the run-up to contests. Judges should keep in mind the importance of stability in election rules and, accordingly, should hesitate before issuing orders that would materially alter those rules. In general, courts should exercise greater restraint if their rulings carry the potential to confuse the electorate, and more so in the period immediately prior to voting.
Again, a broadly defensible idea. But, as they say, the devil is in the details. And the details are precisely where Purcell is lacking. The doctrine has serious problems both in theory and in practice, so much so that I previously concluded that “Purcell is mostly a charade.” For one, Purcell applies only to court-issued rule changes, not election rule changes more broadly. While it’s reasonably understandable why we would want to limit interventions at the last-minute to alter election rules, it is unclear why that would not apply to the lawmakers whose careers depend on the outcome of those election rules. Indeed, the Purcell principle incentivizes elected officials and their co-partisans to change rules to their benefit, including on the eve of elections — and even when voting is already underway. With the knowledge that adherence to Purcell means courts will not strike down these last-minute changes at the risk of being reversed on appeal, self-serving lawmakers are effectively afforded one free election under potentially illegal voting rules.
Exacerbating this last-mover problem is the fact that Purcell does not define what constitutes the lead up to elections. The Supreme Court has invoked Purcell some nine months before the election, yet has refused to adhere to it even when voting had already started. And still, somehow, Purcell has also developed as an iron-clad rule. The Court seems to suggest that it should prevent election rule changing orders irrespective of the illegality claimed and whether the orders would even cause confusion.
Confused? So is the election law community. It is for these reasons and more that I wrote about the doctrine’s application during the pandemic, “Purcell has constructed an empty vessel for unprincipled decision-making and consistently results in rulings that are detrimental to the nation’s most vulnerable voters.”
The silver lining is that Purcell binds the federal judiciary only. It does not apply to state courts. This is critical because in the United States, the overwhelming majority of election litigation occurs in state courts. As a result, state courts have the potential to become effective venues for taming some of the mayhem that Callais has unleashed.
Consider, for example, the ongoing redistricting litigation in Florida. On the very same day that the Supreme Court issued its decision in Callais, Florida adopted a mid-decade gerrymander, with Republican lawmakers forcing through new congressional districts in a mere two days and over the protest of Democratic lawmakers and many voters. The redistricting gambit in the Sunshine State is in plain violation of the state constitution: In 2010, Florida voters amended their constitution to add a Fair Districts Amendment, which forbids any redistricting “plan or individual district [ ] drawn with the intent to favor or disfavor a political party or an incumbent.” (The amendment also outlaws any map whose “intent or result” is to deny or abridge racial and language minority opportunity “to participate in the political process or to diminish their ability to elect representatives of their choice,” which state officials suggest will be rendered unconstitutional pursuant to Callais.) Now, GOP lawmakers in the nation’s third most populous state have manufactured an extreme gerrymander in an attempt to squeeze out three or four additional congressional seats for their party.
Notably, a high-ranking staffer working for Florida’s governor admitted to using political data in the map’s design, but still the state disputes that it constitutes a partisan gerrymander. The state further argues that the alternative to using the adopted map would be to use one that, it claims, would violate the U.S. Constitution under the Supreme Court’s reasoning in Callais. The contention is weak for several reasons. First, the Supreme Court never ruled on the Florida map. Because there has been no ruling on the merits — or petition seeking one — the state’s argument is speculative. It also disregards the best understanding of voter intent. The contention suggests that voters would have wanted to eliminate the prohibition on partisan gerrymandering if their ban on racial gerrymandering was invalidated which, frankly, is wholly unpersuasive. To be clear, it is nothing short of ordinary for a judge to isolate and invalidate an unlawful provision. This is consistent with the canons of interpretation. They would admonish the court to uphold one part of the law — here, the partisan gerrymandering ban — even if another, the racial equality provision, was found to be unlawful.
Last month, however, a state trial court decided against voting rights plaintiffs who sought to prevent the gerrymander from taking effect. Judge Joshua Hawkes admitted that “the question of the [Fair District Amendment’s] continued constitutional viability is premature.” Nevertheless, the court has permitted the use of the challenged redistricting plan for the midterm election. The 2024 election, for context, was the best year for this century for a Republican presidential candidate in Florida, with Donald Trump winning 56 percent of votes cast in the state. Now, just two years later, Republican legislators have rammed through a map that, notwithstanding the constitutional ban on a partisan gerrymandering, will likely give them control of a full 85 percent of the state’s House delegation. But, according to Hawkes, “the potential partisan intent in the 2026 map is the lesser of the two evils.”
Importantly, Hawkes added, “the election machinery of the state is already underway” — citing Purcell. Characterizing it as something “of a federal prudential policy of restraint for federal courts not throwing state elections into disarray,” he called Purcell “a common-sense and sound principle.” With the primary and the general election coming in months, he concluded that “the public interest weighs more in favor of certainty than a haphazard judicial mandate of discarded maps.” Purcell has, again, been enlisted by antagonists of democracy. According to the Florida court’s ruling, which plaintiffs are fighting in the state’s higher courts, it would be less confusing for voters to use a rigged map approved in a partisan miasma just weeks ago.
How, then, should state courts resolve questions regarding election rule challenges as we venture deeper into the campaign calendar? I recommend three things.
First, with respect to Purcell, “End it, don’t mend it.” State courts have a far better approach independent of that federal policy. States can draw on longstanding and well-developed doctrines and principles of equity that can be — and have been — applied to foster free and fair elections. The tests that courts apply to determine whether some election regulation should be enjoined or a lower court order ruling stayed have been designed to assess the likely outcome of the case on the merits, as well as the potential harm that a court ruling (or abstaining) would pose to the parties and the public. Likewise, courts decide whether to issue writs of mandamus (i.e., to mandate a government official to perform some conduct based on the certainty or clarity of the legal rights and duties at issue), as well as the adequacy of other available remedies. And they decide whether, under the circumstances, laches should bar courts from ruling because litigants showed unreasonable delay in bringing their claims. These are, again, well-established principles. They are also pointed and holistic, focusing courts on the actual issue in contention. They aid resolution based on balance, in contrast to Purcell, which acts more as a trump card.
Second, be thoughtful that you are, in fact, dealing with elections, which are both central to constitutional democracy and unique events in and of themselves. This means that courts need to account for things that separate elections from other types of legal disputes. Courts must be mindful of voter registration deadlines and the time needed to print and mail ballots. They need to ensure clarity of the electoral districts and as well as of qualifications and preconditions to voting itself. Tinkering with any of these can cause confusion — irrespective of who does the tinkering — but the amount and nature of the confusion is likely to materialize differently. The thousands of U.S. voting jurisdictions have different rules, so a one-sized-fits-all solution is unlikely to be ideal. Because they are faced with a broad array of election law questions, however, state courts are institutionally positioned to address them with nuance, considering the facts presented and using, yes, common sense. Instead of applying a sweeping rule like Purcell based on untested empirical assumptions, especially about confusion, courts should engage in a probing inquiry and make informed judgments — to promote fairness in the democratic system.
Finally, courts should provide reasoning for rulings. The executive branch “holds the sword of the community,” Alexander Hamilton wrote, while the legislature “commands the purse” and authors “the rules by which the duties and rights of every citizen are to be regulated.” Courts, however, “have neither force nor will, but merely judgment.” Judges speak in the register of law, equity, facts, and reason, and they must weigh these delicate matters in the midst of a partisan storm. As such, they should make their opinions plain for all to see, avoiding summary, shadow docket-type rulings that we have become all too used to seeing from the U.S. Supreme Court. At a time when unreasoned orders already bedevil U.S. election administration, the worst thing for democracy would be to have state courts — especially apex courts — emulating what is occurring at One First Street. In this hyper-polarized era in particular, state courts will be less likely to be perceived as ordinary partisan actors if they provide their decisions (and the basis for them) to the public, allowing them to be analyzed and critiqued on their own terms.
Justice Ketanji Brown Jackson issued a sharp dissent from a decision stemming from the fallout in Callais. In it, she rebuked the Court for expediting the Callais judgment at Louisiana’s request, a break with Supreme Court rules that facilitated the state’s race to eliminate Black voting power before the midterm election — and after voting had already begun. In granting the motion, the Court revealed its own hypocrisy by ignoring “the so-called Purcell principle,” Jackson wrote. State courts need not follow the messy path that the Supreme Court has blazed in the leadup and aftermath of Callais. Instead of allowing “principles [to] give way to power,” Jackson urged, they can use their station to ensure principle emerges from the bottom up.
How State Courts Can Help Deflect the Supreme Court’s Latest Blow to Multiracial Democracy was first published by the State Court Report and republished with permission.
Wilfred U. Codrington III is the Walter Floersheimer Professor of Constitutional Law at Cardozo Law School and the co-author of The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union. He is also a fellow at the Brennan Center for Justice.
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