Getting Rid of DEI Is Like “Getting Soap Out Of A Sponge”

Getting Rid of DEI Is Like “Getting Soap Out Of A Sponge”

I appeared on The Daily Signal Video Podcast, hosted by our friend Virginia Allen, on April 3, 2025. The first third of the show was devoted to my views on whether Trump could serve a third term, and the reaction to Trump saying he hasn’t ruled it out. The second two-thirds of the program focused on the efforts of the Trump administration to get rid of Diversity, Equity, and Inclusion (DEI) in education, with a focus on the efforts of our Equal Protection Project (EqualProtect.org).

My views on Trump’s third term were summarized in this clip The Daily Signal posted to X and their website write up.

Yes, Trump Could Serve a Third Term, Says University Law Professor

There’s nothing in the U.S. Constitution that explicitly prohibits someone from serving a third term, argues Cornell law professor @wajacobson:

“The idea was floated last summer that perhaps Barack Obama would… pic.twitter.com/mOyFCanV0s

— The Daily Signal (@DailySignal) April 4, 2025

President Donald Trump could not run for a third term, but he could be president a third time, according to Cornell law professor Bill Jacobson.

The 22nd Amendment to the U.S. Constitution is clear that no one can be elected to the office of the president “more than twice.”

“But there’s nothing in the Constitution that prohibits someone from serving a third term,” said Jacobson, founder and publisher of Legal Insurrection. If another candidate won the presidential election, and Trump was his or her vice presidential running mate, that candidate could step aside after winning the race and allow Trump to take over, according to Jacobson, who was quick to add he doesn’t endorse such an action.

While a deal made with a running mate for Trump to serve a third term “does not violate the Constitution,” Jacobson says, it “might violate the spirit of the Constitution.”

The intent of the 22nd Amendment is “that we not have a permanent president,” Jacobson said, adding that because of that, serving a third term “might be subject to challenge,” adding:

It might be subject to what was the original meaning of these terms. But on its face, there’s no barrier.

The conversation of Trump serving a third term recently landed in headlines when a number of reporters started asking the president if he wanted a third term.

“I’m not looking at that, but I’ll tell you, I have had more people asking me to have a third term,” Trump said while speaking with reporters on Air Force One at the end of March.

This isn’t the first time the idea of a former two-term president serving another term has been floated. In October 2023, Howard J. Klein of Lakewood Ranch, Florida, wrote in a letter to the editor of The Wall Street Journal that former President Barack Obama could run as the vice presidential candidate with then-President Joe Biden.

“Mr. Obama would constitutionally succeed to the presidency—without election—if Mr. Biden were to vacate the office,” Klein wrote.

The 22nd Amendment was added to the Constitution in 1951 in the wake of President Franklin D. Roosevelt’s election to four terms in 1932, 1936, 1940, and 1944. Congress approved the 22nd Amendment on March 21, 1947, then submitted it to the state legislatures for required ratification. The ratification process was completed on Feb. 27, 1951, when the required 36 of the then-48 states (before Hawaii and Alaska joined the union) had ratified the amendment.

Jacobson sits down with The Daily Signal to provide his legal opinion on Trump serving a third term and to discuss the work of the Equal Protection Project, a project of the Legal Insurrection Foundation aimed at holding universities accountable for violating the Constitution’s equal-protection guarantees.

Here is the full video, with transcript excerpts related to DEI below:

Transcript Excerpts (auto-generated, may contain transcription errors, lightly edited for transcript clarity)

Allen (06:47):

Well, one of the issues that you all do such a good job of covering at Legal Insurrection is what is happening across college campuses. And you all have a fantastic project called the Equal Protection Project, that’s really specifically looking into DEI initiatives on college campuses. This is an issue that recently Trump has been very, very clear on telling colleges and universities, if you receive federal funding, you could lose that if you continue to push these DEI initiatives and offer DEI scholarships. Well, you all over at the Equal Protection Project, you all recently filed a federal complaint alleging that Pennsylvania College of Technology violated federal civil rights law because of a scholarship that they offer. Tell us about that, if you would.

WAJ (07:38):

Equal Protection Project, which is equalprotect.org, we launched in February, 2023. So this was before the affirmative action ruling, before Trump’s election, before the DEI executive orders. And we’ve challenged over 70 colleges and universities based on discriminatory programming and scholarships done in the name of diversity, equity, and inclusion. And what we’ve challenged at Pennsylvania College of Technology, which is an affiliate of Penn State, are 12 scholarships that discriminate in their eligibility requirements, either based on race, color, national origin, or sex. And some of them both. And that’s very common.

What we’ve seen, we have challenged over 200 different programs and scholarships at over 70 institutions. The concept of DEI plays itself out in discrimination. So we don’t challenge something just because it’s run by the DEI department. We challenge them where we believe there are civil rights violations. And having a scholarship or a program which says, you can only apply if you are a certain race, a certain ethnicity, or a certain sex, violates either Title VI of the Civil Rights Act or Title IX of the Civil Rights Act. And if you’re a public institution, the 14th Amendment to the Constitution Equal Protection guarantee.

So that’s what we filed against Pennsylvania College of Technology because they openly promote the scholarships and, and they’re not the worst offender. We challenged 51 scholarships at the University of Rhode Island, I think 40 some odd at University of Illinois, Urbana Champaign, at Indiana University I think we challenged 20 some odd. That is a little bit winding down in the sense that with Trump’s executive orders, there’s more at stake. There’s funding that’s at stake. And I think that will cause the colleges to hide what they’re doing. I’m not sure it’s going to cause them to stop what they’re doing, but one thing we have definitely seen is that they are trying, they’re not publicizing it as much as they used to.

We’ve had very good results in about half our cases, where the university or the college changes the eligibility requirements. In a few cases, they’ve terminated the scholarship or the program. And that’s not our goal. Our goal is not to close things down, it’s to open them up. And we’ve been very, very successful at it.

Allen (10:18):

In regard to these scholarship programs, where is the line? Because obviously there are scholarships, just for men’s sports teams, to computers for women’s sports teams. Is it a really clear cut line in the legal system to say, hey, you can offer a scholarship specifically for this group of people, but maybe, you know, can’t use this criteria?

WAJ (10:40):

There’s several levels to that. First off, the civil rights laws and the Constitution protect everybody. They don’t just protect one race or one ethnicity or one sex. So everybody gets an equal start. There are some exceptions to that, things like sports teams, supporting sports teams, that would be considered I think a legitimate state interest. Although that’s up for debate now, <laugh>, that’s a hot issue. But up until like three years ago, <laugh> okay, it was considered legitimate governmental interest, a legitimate public interest to have separate sports based on one sex. In fact, a lot of people would say, and I would too, that that’s actually required by Title IX <laugh>. So there are some exceptions to it, but generally speaking, if it’s a general scholarship not tied to a sports team, if it’s a general program not tied to a sports team, you have to treat everybody equally unless you have a compelling state interest to not do so. And generally speaking, there’s no compelling state interest.

And I don’t think there was any doubt, but if there was any doubt, in the Supreme Court’s affirmative action ruling, they found that the goal of diversity of the student body is not a sufficiently compelling state interest to justify racial discrimination.

So every program we have challenged has clear eligibility requirements that discriminate on the basis of race, color, national origin, and or sex. So we’re not actually been challenging DEI as such, that’s a whole separate issue. We have been challenging programs and scholarships that violate the civil rights laws. Whether in the future we do what some groups have started to do challenging programs just because they’re DEI is not something we’ve done. But Trump’s new executive orders seem to open up that possibility, but that’s not something we’ve done.

So if you’re in alignment with the civil rights laws and the Constitution, we’re not going to challenge you, even if we don’t like why you’re doing this program or why you’re doing this scholarship.

Allen (12:59):

Are conservatives winning on this front, both in the legal sense and in the court of public opinion? Because like you said, some of these schools are just kind of seems like getting better at hiding it.

WAJ (13:13):

That that’s a tough question. I’ve been a little bit of a pessimist on the likelihood that these executive orders will really get rid of DEI in higher education because it is so deeply embedded.

As you know, because I’ve been on your program going back several years, and I appreciate that, we’ve been following this very closely, and we have been documenting through one of our projects, criticalrace.org, how deeply critical race theory in all its forms, and DEI is a form of critical race theory. DEI is the mechanisms by which critical race theory is implemented. So critical race theory is the theory. DEI are the action items that implement the theory.

So we’ve been covering this for five years and it’s so deeply embedded. People have no idea how deeply embedded it is. The professors are on board, the administrators more than anybody are on board.

Now, some of those departments are being eliminated in red states, but they’re going strong in blue states. And so whether DEI can be squeezed out of the higher ed system remains to be seen.

It’s an analogy, which may not be perfect, but I think it’s pretty close, of trying to get soap out of a sponge. You squeeze it and Trump is now squeezing that sponge and a lot of the easy stuff is coming out now. And he’s able to do that because he’s eliminating the funding for a lot of these programs. And that’s extraordinarily important. Defunding the DEI industrial complex is really important. Eliminating the positions at universities is really important, but the ideology survives. The people who advocate the ideology survive in the system. Most of them get shuffled to other positions in the university. So they may no longer be in the DEI department because the DEI department’s been eliminated, but now they call it ‘belonging.’

That’s the new word. Now they call it something else and they say, well, we’re not doing DEI, so President Trump, please don’t pull our funding. But they’re doing it.

So it’s going to be very tough. This did not happen overnight, although it accelerated post George Floyd, but it’s been there for a long time. It’s not going to go away in two or three years. And I don’t mean to minimize the significant impact that the Trump administration is having. They are, but it’s going to be a long haul.

Now that we’re talking about third terms <laugh>, a third term of Trump. So eight years instead of four of defunding, of trying to squeeze that sponge, I think would have a long-term effect. Whether one to three years of it is going to be enough. I’m a little bit pessimistic on that, but you can only do what you can do. And the Trump administration is doing what they can do.

Allen (16:19):

It’ll be interesting to see if a next administration, if it is a conservative, carries some of these things forward. On that topic though, one of the big actions that Trump recently announced was the dismantling of the Department of Education. Does that potentially play any role here or is that kind of in a completely separate basket?

WAJ (16:42):

Well, again, a lot of the funding for the DEI Industrial Complex came through the federal departments, including the Department of Education, that’s been terminated. So that’s important. A lot of the mandates for what needed to be taught and how it needed to be taught, it at least indirectly came from the Department of Education. Those are being eliminated. So I think it will have an important effect, whether slimming down the department to its core at whether he can completely get rid of, it’s a different question, but eliminating most of its functions.

I’m not sure what impact that’s going to have, because anybody who’s been in the space in the parents’ rights space, knows that a lot of the worst actors in this area are at the state and local level. They’re at the teacher’s union level. Teachers’ unions are the greatest maligned force in the nation when it comes to DEI and the racialization of education.

That’s not going to go away in the short run. And that’s why, again, I say a lot of what’s happening is impactful, is important, but I don’t think it’s going to make it go away. And there are states where they’re actually doubling down on critical race theory and DEI like New York State SUNY System, State University of New York system, which I think is 50 plus colleges and universities, now has a freshman, oh, we’re not allowed to say freshman any year anymore <laugh>, has a first year requirement of essentially a DEI academic course. So it’s getting worse in blue states. It’s obviously gotten better in red states. Purple states could go either way. And I think what you’re gooing see is a huge academic and collegiate civil war where the country splits and you have a choice as a student if you want to go to a school that’s not completely infused from top to bottom with DEI head south. If you want a school that’s completely infused, no matter what happens at the federal level with DEI go Northeast and Northwest and North Central. And so New York State, Illinois, California, Washington, Oregon, they’re just going strong on this stuff. And students will make a choice.

There’s a lot of anecdotal talk, I don’t know what the statistics show, about students shunning the Ivy League and going to southern schools. I think the University of Florida has established a program trying to entice the top ranked students to come there. And I think there are other schools as well. It’s not just University of Florida. And I think that’s a good move, but students will have a choice.

But DEI is going to persist for the foreseeable future. Give the nation this Trump term plus two Vance terms, or this Trump term plus a third Trump term. Do this for six to 10 years. and I think you will deal mortal damage to DEI. Do it for two to three years, and they will hang on, like survivors clinging to a lifeboat, just waiting for help to arrive. And the help could arrive in 2028, depending for them, depending on who’s elected president.

Allen (20:07):

It’s really interesting to hear you talk about that geographical split. That will be really fascinating if that is what what plays out. That is really, really interesting. I do want to ask you one question related to dismantling the Department of Education, just from a legal perspective, does Trump fully have that legal ability to restructure so many of the tasks of the Department of Education put them in other departments? What is potentially the legal fight that the president could be facing on that front?

WAJ (20:44):

Well, the challenges would be is if there are programs mandated by Congress, if they’re mandated to be at the Department of Education, then they have to stay there. I don’t know how many of those there are, but if they’re simply mandated to be implemented by the federal government, there should be no impediment to moving student loans to a different department, whether you could eliminate them is a different question. And I think that’s where the fight’s going to be.

And the fight’s going to be over cutting funding to these groups. And there’s two issues there. One is cutting current funding. And that’s what the fights are over, that there are contracts that the government has the right to terminate. And the challenges are, well, you’re terminating it for the wrong reasons, okay? But there’s nothing on these contracts that are going to require them to be renewed. That’s not even being fought now.

That’s why I say you need some time. I think the Department of Education will continue in some capacity maintaining those essential functions that Congress has mandated must be done by the Executive Branch.

There’s one aspect that is going be very interesting. Because at Equal Protection Project, most of the complaints we filed have been through the Office for Civil Rights of the Department of Education. They fired about half their staff, but they’re continuing to operating now. Letting go half your staff doesn’t mean that you’re doing a worse job. I mean, look at Twitter, now X, they let go of like 70% of their employees and they’re doing just great. So that doesn’t mean there’ll be worse services. And so far the OCR at the Department of Education has been fairly aggressive. They’ve opened several of our cases for investigation, including cases that had sat for months and months and months under the Biden administration. The Department of Justice, Civil Rights Divison, I think is going to get more active.

But a concern that we have, and I’ve expressed it publicly, to the people in the Department of Justice and elsewhere, is that if your goal as an administration is to enforce the Civil rights laws and to get rid of what sometimes we call called reverse discrimination, also called DEI discrimination, if that is your goal as an administration, you can’t do it yourself. You need to maintain a mechanism for groups like ours and the public to be able to bring things to your attention. And you need an enforcement mechanism.

It’s a little too soon to tell how this is going to play out. I do know Department of Justice is getting more in invite involved in Civil Rights matters. They just opened a major investigation, publicly announced, into a case that we brought against the Providence Public School District for a discriminatory program.

So I’m not sure what the future’s going to look like, but my message to the administration, if you’re listening and watching, is that you can’t achieve your goals of ending DEI discrimination and also eliminate the administrative remedies that allow the public to file complaints and bringing these things to your attention. Because if you’re gonna be cutting back staff to save money, you need the public. You need groups like mine and many other groups to be able to document, evaluate, and bring these things to your attention.

So I hope that they don’t completely eliminate OCR at Department of Education, but if they do, and this has been talked about, they’re talking about rolling it into an equivalent function at the Department of Justice, there needs to be a mechanism for groups like mine and the public to bring to your attention, because we’re the eyes and ears on the ground.

At my websites, we get tips pretty much every day from people who say, are you aware of this program? Are you aware of this scholarship? And they do that through our contact form. And we need that. And the government enforcement of civil rights laws needs that. You’re never going to have enough people in the Department of Justice or Education to do all the things that the public can do and that groups like ours can do.

So please maintain this function because it’s critical to achieving what you have said is your mission, eliminating DEI discrimination.

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