By Marilyn Odendahl
The Indiana Citizen
June 10, 2025
Last week, Indiana Attorney General Todd Rokita made public letters his office sent to Butler and DePauw universities alleging that the schools’ diversity, equity and inclusion initiatives may be violating state and federal civil rights statutes, but some legal experts say the state’s top lawyer is “turning civil rights law on its head.”
Rokita asserted in the letters to Butler and DePauw that past initiatives, published materials and statements available on the schools’ individual websites indicate they might be unlawfully engaging in racial discrimination by implementing programs and policies that seek to diversify their students, faculty and staff. The attorney general specifically pointed to the universities’ strategic goals and actions to attract, retain and support students and employees from “marginalized and underrepresented backgrounds” and he told the schools that policies and practices promoting DEI could be unlawful racial discrimination.
Moreover, Rokita noted the schools’ nonprofit tax-exempt status is contingent on their being “organized for a public or charitable purpose.” Treating students, prospective students, faculty, staff and job applicants differently based on their race or ethnicity could constitute an abuse of the authority granted by Indiana’s nonprofit laws and could indicate the universities are violating state law by misapplying or wasting assets.
“In Indiana, a person’s race or the color of his skin is not a lawful basis on which to make hiring, promotion, admissions, or other student or employment-related decisions,” Rokita wrote, citing to state laws and legal precedent. “Actions by a university organized as a nonprofit that appear to contravene such deeply rooted state policy raise a host of questions about whether the university is serving a public or charitable purpose.”
Indianapolis civil rights attorney Mark Nicholson sees the attorney general’s letters as reflecting a shift in the U.S. Supreme Court and the Republican party toward viewing DEI as discriminatory. Having diverse talents, backgrounds and ideas within an organization has always been valued, he said, but now diversity has become a negative and the DEI initiatives used to help overcome the oppression Blacks have experienced is being touted as discriminating against white people.
“This is, in a sense, race baiting, because what he’s trying to argue, and what the proponents of attacking DEI are trying to say, is it’s all about race,” Nicholson said. “Technically it’s not all about race, (it’s about) diversity.”
The letters, both dated May 28, ask Butler and DePauw to respond to a series of questions and turn over documents and communications related to their DEI efforts. Rokita said the information will help his office assess the schools’ compliance with civil rights law and terms of their nonprofit status. He gave them until June 27 to fulfill his request.
Earlier in May, Rokita released a nearly identical demand letter he sent to the University of Notre Dame, making the same request for materials about that school’s DEI policies and practices. Notre Dame, which was given until Monday, June 9, to comply, did not respond to an email from The Indiana Citizen asking for an update.
Likewise, neither Butler nor DePauw indicated whether it would be turning over the information requested by the attorney general.
“Butler University is in receipt of a communication from the Office of the Attorney General and is currently reviewing the requests,” a statement from the university said. “The University takes seriously its commitment to compliance with all state and federal laws and will respond to the Office of the Attorney General within due time.”
DePauw University, in a statement, highlighted its founding in 1837 and its roots in the Methodist tradition.
“Guided by our institutional values of integrity and our commitment to excellence, we uphold high ethical standards and do not engage in unlawful discrimination in our admissions and hiring practices,” the university said in a statement. “We recruit and retain talented students, faculty and staff who enrich our small and caring campus community and, in turn, are enriched by it, carrying forward DePauw’s tradition of supporting and creating positive changes in Indiana and throughout the world.”
To bolster his argument that Butler’s and DePauw’s policies to diversify their campuses could be violating civil rights laws, Rokita cited to two U.S. Supreme Court decisions which actually upheld efforts to end racial discrimination against Blacks in schools.
In the first case, Bob Jones University v. United States (1983), the court majority found the Internal Revenue Service had the authority to withdraw tax-exempt status from nonprofit private schools that practiced racial discrimination in the admissions process. Here, the school excluded Black applicants until 1971 and then continued to deny admission to those who were either engaged in or advocating for interracial dating or marriage. In the second case, Norwood v. Harrison (1973), the court held that Mississippi could not providing funding or aid to private schools which excluded students on the basis of race.
Quoting from the Bob Jones decision, Rokita wrote to Butler and DePauw, “It is beyond question that ‘racial discrimination in education violates deeply and widely accepted views of elementary justice’ in Indiana and the United States.”
Chris Daley, executive director of the ACLU of Indiana, described Rokita as being among those who do not believe in the country’s civil rights principles and laws. He said the DEI goals and practices at colleges and universities like Butler and DePauw follow the intent of non-discrimination laws by creating environments where students can learn and employees can work without fear that they will be diminished or excluded because of their race, gender or ethnicity.
“(Rokita’s) legal analysis in his letter runs contrary not only to the word of our civil rights statutes, but certainly to the purpose of them,” Daley said.
In particular, Daley noted that Rokita is trying to block DEI programs and initiatives at Butler and DePauw universities by relying on the racial discrimination lawsuit brought against Bob Jones University for not admitting Black students.
“The attorney general is comparing efforts to make sure that all students and faculty and staff feel included and embraced by their institution and that they have an equal educational and employment opportunity to a university who only allowed white students to enroll,” Daley said. “If you need a clearer explanation of how this is turning civil rights law on its head, I’m not sure I can provide one.”
Nicholson was especially scornful of Rokita’s mention in his demand letter about Butler celebrating a historic first in the school’s diversity efforts. According to the attorney general’s letter, the Indianapolis higher-education institution stated that the Fall 2021 freshman class was the “most diverse incoming class in (the school’s) history with 21 percent self-identifying as students of color. “
Pointing to the statistic, Nicholson questioned how low Rokita wanted the percentage to be, since it meant that Butler’s most diverse class was still 79% white. He said the letters to Butler and DePauw were particularly brazen not only in pushing back against the advances that minorities have made but also in supporting anti-DEI arguments by citing the Bob Jones and Norwood cases which erupted over white people in positions of power wanting to limit the number of Blacks coming to their schools.
“There’s a bigger picture that we’re seeing here is (to) attack these schools of higher education to keep people dumb, keep people uneducated, keep people poor,” Nicholson said. The letters’ message to Black people is “We don’t want your kind in college, at least not the prestigious kind. You can go to those non-prestigious (colleges), go to your trade school or something like that. Or, matter of fact, go out there and commit crime, so we can lock you up and we ain’t got to worry about you anymore.”
In the letters, Rokita also referred to the U.S. Supreme Court’s 2023 ruling in Students for Fair Admission, Inc., v. President and Fellows of Harvard College, but Daley said the attorney general’s interpretation of that case was flawed as well. Rokita told Butler and DePauw the 6-to-3 decision held that racial discrimination in colleges and universities could “rarely if ever be squared” with federal civil rights laws, regardless of the schools’ justification for the practices.
The letters singled out what Rokita saw as Butler’s and DePauw’s problematic reactions to the ruling. The attorney general said the Supreme Court’s clear pronouncement “may have fallen on deaf ears” among the leadership at Butler, while DePauw may have met the decision with “evasion, circumvention, and obstruction, rather than a good faith desire to respect the civil rights of students and faculty.”
Daley said the Supreme Court opinion in the Harvard case found fault with the use of race in school admission decisions, which is very different from what a vast majority of diversity programs do. Diversity initiatives, he said, seek to make sure all people, regardless of their race or disability or veteran status, are comfortable at the institution and are offered an equal education.
“The attorney general is trying to say any attempt to be a multicultural institution is somehow, at its core, discriminatory and that certainly is not what the Supreme Court held most recently in the Harvard affirmative action case,” Daley said of the Students for Fair Admissions decision. “It’s not how civil rights law has been understood.”
Richard Waples, an Indianapolis civil rights attorney, indicated Rokita is standing on a decision that, in time, will join other erroneous rulings that were overturned like Plessy v. Ferguson, the 1896 Supreme Court holding which established “separate but equal” doctrine used for many years to justify segregation. He said educational institutions and individuals should not wait, but instead should resist “this regressive position” in every way possible.
“The Supreme Court’s Students for Fair Admissions decision has turned our country’s civil rights law on their head and ignores our country’s long history of de jure and de facto discrimination,” Waples said in an email. “The notion that our academic institutions should not take race into consideration in admissions and hiring in the guise of racial fairness is simply the judicial endorsement of the Make America Racist Again movement that President Trump has championed. It is wrong and will be reversed in the future.”
According to Daley, the attorney general’s letters are requests for cooperation, rather than a court-ordered demand requiring the release of documents and communications. Butler and DePauw, he said, could toss the letters into the trash can, but they would be ignoring them at a time when universities are under “enormous pressure” from the Trump administration.
“I think there are ways in which the attorney general and other elected officials in the state, following the lead of the federal government, can even, short of a lawsuit, make lives very difficult for these institutions,” Daley said.
Nicholson agreed, noting Rokita appears to be signaling to all universities and colleges in Indiana about the havoc he can bring as the state’s top lawyer. Pointing out that the state has the most resources, Nicholson said he has seen the power of the government and represented victims – as well as been a victim, himself – of that power. As such, Butler and DePauw might be weighing carefully the consequences of their potential responses, he said.
“You see that there’s this push and pull with some businesses wanting to keep their diversity policies in place and then some of them saying, ‘No, we’re going to get rid of them because we don’t need the headache.’ So that’s what you have here,” Nicholson said. “Is it easier for the school then to say, ‘Hey, we’re just going to get rid of our diversity policy and all that kind of stuff, so we don’t have to deal with this headache,’ or to keep it in place?”
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
