General Counsel Spring 2025 Newsletter
DEI, Gender Ideology Targeted in Executive Orders
With the change of administration, the higher education community has been the target of multiple executive orders and resulting agency actions in a very short period of time. They cover multiple areas affecting the University, including matters related to diversity, equity, and inclusion. The Department of Education has added content with a February 14 Dear Colleague Letter and a 9-page Q&A released late on Friday, February 28.
There are three primary orders related to DEI matters, entitled “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” (“The Illegal Discrimination order” or ID order ), “Ending Radical And Wasteful Government DEI Programs And Preferencing” (the “Ending DEI” order) and “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government” (the “Defending Women” order).
It is important to understand what these orders say and how they affect KU and other schools.
The Illegal Discrimination order uses the President’s authority over federal contracting to attempt to force elimination of “illegal” DEI programs. The order directed all federal agencies--such as NIH and NSF--to include in every contract or grant award a term requiring the recipient to certify it does not operate any programs “promoting DEI that violate any applicable Federal anti-discrimination laws.” The order then requires a term that makes compliance with that term “material” to the government’s obligation to pay. That provision makes the certification–-and payment–-subject to enforcement under the federal False Claims Act (FCA). The FCA allows private parties, not just the government, to bring claims against the recipient. By doing so, the order significantly expands the risk of being sued for noncompliance, and the FCA allows the recovery of treble damages and fees and costs.
“Illegal DEI” doesn’t have a definition in the Orders. So what is it? At a minimum, it means we need to make sure we continue to follow the law in hiring, admissions, and scholarships, focusing on candidates’ and applicants’ individual merit, initiative, and competence. We cannot make decisions that exclude, divide, or otherwise discriminate on the basis of protected class such as race, sex, religion, and national origin. That means we may not consider race or other classes when making those decisions.
What is not illegal DEI, however, as explained in a February 5, 2025 memo from the U.S. Attorney General’s office, is educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day, and similar events. In fact, the President signed an order recognizing Black History Month and calling for its observance with “appropriate programs, ceremonies, and activities.”
Importantly, the Ending DEI order specifically targets institutions of higher education, Endowments, and private sector businesses. It orders the U.S. Attorney General, working with other agencies, to develop enforcement strategies to encourage the end of “illegal discrimination and preferences, including DEI.” The order directs each agency to identify up to nine potential civil compliance investigations of State and local bar and medical associations, and institutions of higher education with endowments over one billion dollars.
Meanwhile, the Defending Women order states that “Federal funds shall not be used to promote gender ideology”, which it defines as “biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex. ….” According to the order, “gender identity” reflects “a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.”
The University is already seeing agencies taking steps to respond to these orders, pausing grants and awards and demanding certification of compliance. In addition, litigation has been filed challenging some of these orders, and a court in Maryland has prohibited further actions requiring the contract certification, finding, among other things, the certification likely violates the First Amendment and the right to due process. On March 14, however, an appeals court reversed the injunction, so we may again see demands for certification and new contract language regarding compliance.
In addition to the EOs, the Department of Education has issued a February 14, 2025 Dear Colleague Letter (DCL) and a Q&A document on Friday, February 28 with further guidance. That Q&A makes clear that the legality of DEI programs depends on the program, not the title: “Whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’ Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.” (Q&A at page 6.) The DCL has been challenged in two lawsuits, but the Q&A has not yet. The DCL and Q&A do not have the force and effect of law, but they do tell about the position the Department of Education will take in enforcement actions. The State of Maine has already been targeted for such an action.
These cases are rapidly developing and changing. We know the shifting landscape is challenging to follow and troubling to many in the University community. We will continue to track developments in this area so we can answer your questions as you have them.
Who, What, Where...is the Office of the General Counsel?
The Office of the General Counsel, led by General Counsel Kim Schlie Grunewald, is a One University office with responsibility for all legal matters across the University of Kansas, including its campuses in Lawrence, Kansas City, Edwards, Wichita, Salina, and Yoder. In carrying out that responsibility, the General Counsel and other members of the office handle a broad variety of legal matters including constitutional law, regulatory compliance, litigation, employment matters, research issues, open records, policy matters, athletics, law enforcement, real estate, construction, and contracts for the University and its controlled affiliates, such as Kansas Athletics, Inc., KUCR and KUMCRI.
The Office of the General Counsel operates across campuses, with staffing in Strong Hall in Lawrence, Murphy Administration Building on the Medical Center campus, and in Regnier Hall on the Edwards campus.
What is--and isn’t--the University of Kansas?
The University of Kansas, which was established in 1864 by a charter granted by the Kansas State Legislature, operates as an agency of the State of Kansas. (K.S.A. §§ 76-711(a), 76-712). As a state educational institution, it is controlled and managed under the supervision of the Kansas Board of Regents. (K.S.A. § 76-712). The Chancellor is considered the chief executive officer and is appointed by the Board of Regents. (K.S.A. § 76-714). Many (but not all) of the state laws governing the University’s structure are found in Kansas Statutes Chapter 76, Article 7.
While the KU Lawrence campus and the University of Kansas Medical Center (KUMC) campus each receive their own state budget, they are not separate universities. The KU Lawrence campus is the main campus of the University, and students have attended classes there since 1866. KUMC, which is now comprised of the Schools of Medicine, Nursing, and Health Professions, was established as a separate campus of the University in 1905 through the merger of a number of proprietary medical schools. The first building on the present site in Kansas City was opened in 1924. The University also now has campuses in Overland Park, Salina, and Wichita.
The University also has several affiliated corporations, which are considered controlled by the University as defined by KBOR, but are separate legal entities (KBOR Policy Manual, Ch. II, Section D.9). These include Kansas Athletics, Inc.; the Memorial Union Corporation; and our research corporations KUCR and KUMC-RI. The University’s attorneys in the Office of the General Counsel represent both the University and its controlled affiliates.
Other entities are independently operated and controlled, but with close affiliations to the University. These include the KU Alumni Association, the KU Endowment Association, and the University of Kansas Hospital (now known as the University of Kansas Health System), which was legislatively separated from the University in 1998 to become an independent hospital authority. University attorneys do not represent these non-controlled affiliates.
FERPA
The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects student privacy. It prohibits the University from releasing certain information in student records with the student’s written consent. Violations of FERPA are required to be reported to the federal government.
For our faculty and staff, that means being cautious when emailing or sharing information related to students. Unless the information is “directory information” as defined in the University’s Student Records policy, it should not be disclosed. KUID numbers and demographic information, for example, are not directory information and should not be shared – and therefore should not be part of class sign-in sheets or similar records. When emailing about a student, reference their initials but not names to avoid disclosure in the event the email is misdirected.
FERPA applies – even to visits by law enforcement officers. University policy requires a subpoena, search warrant or other court order for all information released to law enforcement agencies, except for student directory information. Accordingly, unless there is a health and safety emergency, only directory information may be disclosed. If you receive a subpoena or a warrant requesting student information, reach out to the Office of General Counsel (Lawrence: 785-864-3276 or KUMC: 913-588-3281) for assistance.
Additional FERPA information can be found on the Registrar’s website.
You've been served? What next?
If you have been served with a subpoena in your official capacity, notify the Office of the General Counsel immediately, noting the date and time you were served. A subpoena is an official court document. Deadlines apply for responding to a subpoena for records, or for appearance at a deposition, court hearing or trial. Reach out to the University's Director of Litigation Jennifer Kellogg at jkellogg@ku.edu.
Welcome back Marissa!
Marissa Hotujac joined the General Counsel’s office in February 2025. Marissa previously worked at Husch Blackwell LLP in the Education practice group where she represented higher education institutions on issues involving civil rights, employment disputes, student conduct, investigations, campus safety, student privacy, and policy review. During this time, Marissa also served in several interim roles at public and private institutions, including as an interim Title IX Coordinator, Director of Legal Affairs, ADA Coordinator, Equity Director, and Risk Management officer.
If Marissa looks familiar, it is because Marissa also served as the inaugural Higher Education Law Fellow for the General Counsel’s office from 2020-2022. Additionally, she previously clerked with the Department of Justice Environment and Natural Resources Division in Washington D.C., the Johnson County District Attorney’s Office, and the Third Judicial District Court in Topeka, Kansas. Marissa holds a B.A. in Communication from Truman State University, and a J.D. from our very own esteemed KU School of Law.