University Trustees Must Ensure Anti-Bias Compliance on Campus

There is a stark reality dawning on higher education today: Many universities are out of compliance with key aspects of federal civil rights laws. The consequence can be the loss of federal funds which, for a modern university, is the regulatory equivalent of the death penalty.

Harvard now finds itself the subject of such action by the Trump administration. We doubt the gallows ultimately await Harvard or other universities, but one shouldn’t ignore the possibility.

University trustees, often financially successful alumni but outsiders to higher education, need to step up and ensure compliance. They should do so out of love for their institutions, but also out of self-interest. Failure to monitor and ensure compliance is a breach of their fiduciary obligations and can ultimately lead to personal liability.

The US Supreme Court this term unanimously confirmed in Ames v. Ohio that Title VII protections from employment discrimination are individual, not group, rights. Discriminating against an individual to achieve a better outcome for a racial group is always legally suspect.

While some legal uncertainty persists, common university faculty hiring policies are now indefensible. One such policy, a DEI statement, is still in widespread use. In practice, the statements require faculty members to commit themselves to the very kind of race-based preferential treatment that the justices rejected.

Two years ago, the Supreme Court clarified that Title VI bans preferential treatment based on race in admission. Yet data suggests that many universities haven’t changed their admission policies. Equally problematic, some universities maintain disciplinary, student training, and speech regulations that explicitly treat students differently on the basis of race or sex.

More common are facially neutral policies that are applied in a discriminatory manner. As we have shown in a forthcoming paper, which was further confirmed by Harvard’s self-study on antisemitism, opaque disciplinary processes typically hand significant discretion to politically homogenous panels, making such processes ripe for discriminatory implementation.

Title IX prohibits sex discrimination in all areas of higher education. In the context of athletics the act requires, with few exceptions, universities to balance athletic opportunities between men and women based on their percentages in the undergraduate student body. Yet, as the Government Accountability Office reported in 2024, most colleges fall far short in this regard.

The potentially existential risk of noncompliance ought to concentrate efforts to comply with the law, but universities face serious governance problems. Certain groups, including activist faculty, students, or administrators, control the creation and implementation of much university policy. Yet these groups only hold powers delegated to them.

Like a private corporation, university boards of trustees bear ultimate responsibility. State law generally imposes on corporate boards a compliance obligation, often under the so-called Caremark standard, which requires boards faced with issues that pose a serious threat to the corporation to set up compliance frameworks and ensure they work.

The Caremark case itself involved a potential Medicare fraud and the massive liability that could follow. Recently, Boeing’s board settled a similar case concerning its safety compliance issues for $237.5 million.

University trustees typically are bound by the same duties as are those on for-profit boards. Although some state laws are more protective of nonprofit boards, nonprofit boards nonetheless face risk of personal liability for their decisions. Though there are no shareholders to sue, a state attorney general or dissident board member may do so. Few such actions have yet been brought, but we suspect such cases are likely to grow.

Of course, not every compliance issue is existential. Government agencies sometimes overreach, and the law is not always clear. A reasonable and attentive board may choose to litigate ambiguous or unlawful government demands. But recent Supreme Court decisions have added clarity, and a passive board that fails to monitor or enforce clear regulations is putting itself and the university at dire risk.

Today, faculty and students are accusing the Trump administration of flouting the rule of law to advance its political agenda. Many universities, however, seem to be doing the same in the name of social justice. It is time for higher ed to bring its own house into order.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Kimberly Yuracko is a professor at Northwestern University’s Pritzker School of Law and a nationally recognized expert in antidiscrimination law.

Max Schanzenbach is a professor at Northwestern University’s Pritzker School of Law and an expert in corporate law and corporate compliance.

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