On April 24, 2025, three federal courts enjoined the Department of Education (“DoE”) from enforcing three recent DoE publications: (1) a Dear Colleague Letter published on February 14, 2025; (2) an FAQ guidance document published on March 1, 2025; and (3) a certification requirement for all local education agencies to certify compliance with federal antidiscrimination law, or otherwise risk losing federal financial assistance.
Below we have provided a brief summary of these federal court decisions.
American Federation of Teachers, et al. v. Department of Education, et al—
On April 24, 2025, a judge for the United States District Court for the District of Maryland granted plaintiff’s motion for a stay on DoE’s enforcement of its Dear Colleague Letter. The letter, which purported to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance…” in accordance with Title VI, the Equal Protection Clause of the U.S. Constitution, and the recent Supreme Court Case, Students for Fair Admissions v. Harvard, directed all educational institutions to:
- ensure that their policies and actions comply with existing civil rights law;
- cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
- cease all reliance on third-party contractors, clearing houses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.
The letter further explained that educational institutions that fail to comply with the directive may face loss of federal funding.
The American Federation of Teachers sued, alleging that DoE failed to engage in a formal rulemaking process in accordance with the Administrative Procedure Act. Furthermore, the Administrative Procedure Act requires a judge to set aside an agency action if, among other bases, the action is found to be in excess of an agency’s jurisdiction, authority, or other limitations. 5 U.S.C. § 706(2). The Court held that DoE’s Dear Colleague Letter, and the documents interpreting/refining the Dear Colleague Letter, prohibited conduct beyond the scope of current federal antidiscrimination laws. The Court wrote: “[a]s this Court already concluded, there is no basis in Title VI … for concluding that discussion of race—in the two ways highlighted in the [Dear Colleague] Letter or otherwise—is ever, or especially always, discrimination.” Therefore, the Court stayed enforcement of the Dear Colleague Letter, which had the effect of postponing the Dear Colleague Letter’s effective date until a final disposition is issued by the courts.
National Education Association et al. v, United States Department of Education, et al—
On March 5, 2025 (subsequently amended on March 21, 2025), the plaintiff, the New Hampshire chapter of the National Education Association (NEA), sued DoE in the United States District Court for the District of New Hampshire alleging that DoE’s Dear Colleague Letter violated plaintiff’s members’ First and Fifth Amendment rights, in addition to the Administrative Procedure Act.
In accordance with the due process requirements in the Fifth Amendment, vague laws cannot be maintained because vague laws cause citizens to “steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Because the Dear Colleague Letter suggests that DEI programs can violate Title VI, without providing a clear definition of impermissible DEI programs, the Court found that the Dear Colleague Letter and its enforcement mechanisms likely violate the plaintiff’s members’ Fifth Amendment rights. The Court also concluded that plaintiff is likely to prevail on the First Amendment claims because the Dear Colleague Letter sufficiently targeted specific viewpoints, e.g., “a professor would run afoul of the Dear Colleague Letter if she expressed the view in her teaching that structural racism exists in America but does not do so if she denies structural racism’s existence. This is textbook viewpoint discrimination.” Finally, the Court held that the plaintiff is likely to succeed on the merits of the Administrative Procedure Act claim that: (1) the Dear Colleague Letter is contrary to Constitutional right, (2) the Dear Colleague Letter is in excess of DoE’s statutory jurisdiction, (3) the Dear Colleague Letter is contrary to law, and (4) the Dear Colleague Letter did not follow the Administrative Procedure Act’s formal rulemaking process. Therefore, because the plaintiff is likely to succeed on the merits of its Fifth Amendment, First Amendment, and Administrative Procedure Act claims, the Court enjoined DoE’s enforcement of the Dear Colleague Letter, the FAQ guidance document, and the certification requirement.
Importantly, this injunction does not apply on a nationwide basis, but only to plaintiff, plaintiff’s members, and entities receiving federal funding that employ or contract with plaintiff or plaintiff’s members.
The language of the injunction reads as follows:
Defendants United States Department of Education; Linda M. McMahon, in her official capacity as Secretary of the Department of Education; Craig Trainor, in his official capacity as Acting Assistant Secretary for Civil Rights, Department of Education; and their agents, employees, representatives, successors, assigns, and any other person acting directly or indirectly in concert with them, are enjoined from enforcing and/or implementing the Dear Colleague Letter issued on February 14, 2025, including through the February 28, 2025 “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act,” the End DEI Portal, and the April 3, 2025 certification requirement, against the plaintiffs, their members, and any entity that employs, contracts with, or works with one or more plaintiffs or one or more of plaintiffs’ members.
This injunction does not create a nationwide pause on the DEI Certification requirement. However, arguably, any school district with a certified NEA affiliated union (e.g., WEAC) and/or employing individuals who are members of an NEA affiliated union, would be covered by the injunction.
National Association for the Advancement of Colored People v. U.S. Department of Education, et al—
On April 15, 2025, the National Association for the Advancement of Colored People (NAACP) sued DoE in the United States District Court for the District of Columbia and sought an injunction to preclude enforcement of DoE’s Dear Colleague Letter, the FAQ document, and DoE’s certification requirement. The NAACP claimed that DoE violated the Fifth Amendment, which requires that laws be sufficiently specific to avail the public of prohibited conduct, based on DoE’s failure to define “DEI”, what a “DEI” practice is, or to delineate between lawful and unlawful “DEI” practices.
On April 24, 2025, the Court ruled in favor of the NAACP and agreed that DoE has not sufficiently defined prohibited activities in a manner sufficient to comply with the Fifth Amendment. Therefore, the Court enjoined enforcement of the Dear Colleague Letter, the FAQ guidance, and the DoE certification requirement. This injunction applies nationwide.
The language of the injunction reads as follows:
pending a further order by the Court, the defendants, as well as their officers, employees, and agents, are PRELIMINARILY ENJOINED from implementing and enforcing the Certification. The Enjoined Defendants shall not require any entity or individual subject to the Certification to make any “certification” or other representation or assurance pursuant to the Certification. The Enjoined Defendants shall not impose any consequences on any entity or individual subject to the Certification for failing to submit a Certification. The Enjoined Defendants shall not initiate any enforcement action, including, but not limited to, a False Claims Act suit, against any entity or individual which has already submitted a Certification, arising out of any representation made or assurance given by such entity or individual in complying with the Certification. But this Order shall not preclude the Enjoined Defendants from initiating any enforcement action which they may otherwise lawfully pursue under Title VI of the Civil Rights Act and its implementing regulations; it is further ORDERED that the Department of Education shall provide a copy of this Order to all entities and individuals subject to the Certification.
Wisconsin Litigation Update—
On April 25, 2025, Wisconsin Attorney General Josh Kaul joined the attorney generals of California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Nevada, Oregon, Rhode Island, Vermont, and Washington in filing a lawsuit in the United States District Court for the District of Massachusetts, which also seeks to preliminarily and permanently enjoin DoE’s certification requirement on all educational institutions, including those in Wisconsin, as well as to vacate and declare as null and void, DoE’s DEI certification requirement. We anticipate that this lawsuit will provide additional clarity regarding the scope of DoE’s authority on this matter within our state and beyond.
Impact on Wisconsin School Districts—
Based on the decisions referenced above DoE is temporarily precluded from enforcing the certification requirement and otherwise relying on the Dear Colleague Letter and the FAQ guidance document, to enforce Title VI, the Equal Protection Clause, and Students for Fair Admissions v. Harvard. This injunction prohibits DoE from withholding federal financial assistance from any educational institutions. Therefore, school districts do not currently incur substantial risk of withholding federal funds if they fail to comply with the Dear Colleague Letter, the FAQ guidance document, or DoE’s certification requirement.
This injunction DOES NOT, however, authorize school districts to violate federal antidiscrimination obligations based on law, guidance, and/or other rules issued by DoE prior to the Dear Colleague Letter.
For those school districts and other educational institutions that already submitted the DoE prescribed certification form or the modified form that we provided on April 24, 2025, the injunction prescribed by the Court in National Association for the Advancement of Colored People v. U.S. Department of Education, et al prohibits DoE from initiating any enforcement action, including the False Claims Act and withholding federal funds, based on those school districts that did or did not submit certification. Therefore, at this time, we do not identify any legal benefit in revoking the certification form. However, to the extent the injunctions are altered or revoked, our analysis may change accordingly.
We will continue to monitor this important litigation and provide you with updates regarding the guidance from and activities of DoE, the Wisconsin Department of Public Instruction, the Wisconsin Attorney General, and the courts.
