President Trump’s two diversity, equity, and inclusion (“DEI”) executive orders are back in force, for now. The two orders are:
- Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, Executive Order of January 20, 2025, 90 Fed. Reg. 8339 (Jan. 29, 2025) (the “J20 Order”); and
- Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, Executive Order of January 21, 2025, 90 Fed. Reg. 8633 (Jan. 31, 2025) (the “J21 Order”) (collectively, the “Orders”).
The Orders warned institutions they could lose access to federal funds if they fail to eliminate illegal DEI initiatives and programming. This threat has teeth, as Columbia’s pulled funding recently establishes. Administrators worked overtime to determine what compliance with the Orders would require (we offered our own thoughts on this exercise in our January 24 blog post). That work is once again relevant.
On February 21, 2025, a Maryland federal district court entered a nationwide preliminary injunction, which halted three key aspects of the Orders:
- the J20 Order’s “Termination Provision,” ordering agencies (including the Department of Education) to terminate “equity related” grants or contracts within 60 days of the J20 Order;
- the J21 Order’s “Certification Provision,” requiring the head of each agency (including the Secretary of Education) to include in every contract or grant award terms requiring the other contracting party to agree that its compliance with Federal anti-discrimination laws is material to the government’s payment decisions and certifying that such contracting party does not operate any programs promoting DEI that violate Federal anti-discrimination laws; and
- the J21 Order’s “Enforcement Threat Provision,” requiring the Attorney General by May 21, 2025 to submit a report (the “Report”) containing recommendations for enforcing Federal civil-rights laws and ending illegal discrimination and preferences, including DEI, and, among other things, requiring the Department of Education to identify up to nine potential civil compliance investigations of institutions of higher education with endowments over $1 billion (collectively, the three challenged provisions are referred to as the “Challenged Provisions”).
The “Preliminary Injunction” Order held that the Government Defendants, other than the President, and any person in active concert or participation with them, shall not: (1) pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations, or change the terms of any such award, contract or obligation, on the basis of the Termination Provision; (2) require the requested certifications in the Certification Provision; or (3) bring any False Claims Act enforcement action, or other enforcement action, pursuant to the Enforcement Threat Provision. For “prudential and separation of powers reasons,” it did not enjoin the Enforcement Threat Provision’s directive that the Attorney General prepare the Report and engage in investigations.
The order was a “nationwide” order, “including similarly situated non-parties within the scope of [its] injunction.” The Maryland federal district court later clarified that the Preliminary Injunction Order applies to all agencies, and not just the specific agencies sued as defendants in the case.
The Government Defendants appealed the next day. The district court denied their request that the preliminary injunction be stayed pending the appeal. The Government Defendants then asked the Fourth Circuit for a stay pending appeal.
On Friday, a unanimous three-judge panel with the Fourth Circuit granted the stay in a brief order. This means all aspects of the Orders are back in effect, at least until the appeal is decided. Two of the judges are Obama appointees, and one is a Trump appointee. Judge Pamela Harris, one of the Obama appointees, noted in her concurrence that the Orders “are of distinctly limited scope, and “do not purport to establish the illegality of all efforts to advance diversity, equity or inclusion, and they should not be so understood.” Instead, the “Certification” and “Enforcement Threat” provisions “apply only to conduct that violates existing federal anti-discrimination law.” Further, she interpreted the “Termination Provision” to direct termination of grants “based only on the nature of the grant-funded activity itself,” rather than “a grantee’s speech or activities outside the scope of the funded activities.” The Fourth Circuit noted that it will expedite briefing on the appeal of the Preliminary Injunction Order.
The DCL update
The Orders, even while preliminarily enjoined, never fully went away. The Preliminary Injunction Order did not apply to the Education Department’s February 14 Dear Colleague Letter (“DCL”), which relies upon the recent Supreme Court case Students for Fair Admissions v. Harvard (“SFFA”), and not the J20 or J21 Orders, as the basis of its authority. The DCL used SFFA to threaten the federal funding of institutions that operate DEI programming or consider race in almost any institutional decision. This significantly expands the holding of SFFA—which confined itself to race-based admissions policies.
On February 25, a large teachers union filed a complaint against the Department of Education (the “Department”) challenging the enforceability of the DCL on DEI issues. They filed this lawsuit in the same federal district court in Maryland that entered the Preliminary Injunction as to the Orders, but were assigned a different judge. Plaintiffs contended that the DCL “upends and re-writes otherwise well-established jurisprudence” and “misrepresents the state of the law.” They also argued that it deviates from the Department’s prior interpretations of the law. Plaintiffs ask the court to declare the DCL unlawful and unconstitutional and enjoin the Department “from enforcing or taking any steps to implement or apply” the DCL. That preliminary injunction path has been disrupted by the Plaintiffs’ filing an amended complaint with specific allegations as to a Eugene, Oregon school district. Thereafter, the court entered an order asking to show cause why the case should be heard in Maryland, and noting that it appeared that the Maryland chapter of the union was named a plaintiff merely to manufacture venue in Maryland. That show cause order is being briefed.
The Department later clarified the DCL with an FAQ, released March 1, that more closely follows the law, and gives specific examples of what the Department considers to be violations of the law. One example of a violation is “any school-sponsored or school-endorsed racially segregated aspects of student, academic, and campus life, such as programming, graduation ceremonies, and housing.” It later stated that “schools with programs focused on interest in particular cultures, heritages, and areas of the world would not in and of themselves violate Title VI, assuming they are open to all students regardless of race.” Further, “educational, cultural or historical observances – such as Black History Month, International Holocaust Remembrance Day, or similar events – that celebrate or recognize historical events and contributions, and promote awareness” are not violations “so long as they do not engage in racial exclusion or discrimination.”
School investigations
Last week, the Department announced it was following through on the DCL, and investigating more than 50 schools for alleged racial discrimination, including Yale, Cornell, and Duke, as well as public universities such as Ohio State. The “investigations come amid allegations that these institutions have violated Title VI . . . by partnering with ‘The PhD Project,’ an organization that purports to provide doctoral students with insights into obtaining a Ph.D and networking opportunities, but limits eligibility based on the race of participants.” Title VI provides that no “person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. The investigated schools possibly face a withdrawal of federal funding.
Thompson Coburn’s Higher Education practice will continue to closely follow developments in the ever-changing DEI landscape. Institutions with questions regarding the preliminary injunction or the Department’s February 14 DCL are welcome to contact any one of the attorneys listed below.
Higher Ed Litigation Roundtable – March 19, 2025
Join us Wednesday, March 19 for our Higher Education Litigation Roundtable. This session will provide an in-depth analysis of key rulings, enforcement actions, and legal strategies, helping institutions navigate complex legal challenges and mitigate risks.
During this session, our litigators will also introduce the development of a new Higher Education Litigation Summary that provides analysis and updates on the status of litigation involving the Department of Education and reports on other notable cases affecting higher education institutions.
