In its first 100-plus days, the U.S. Department of Education under the Trump Administration and Education Secretary Linda McMahon has taken numerous actions regarding what it refers to as “DEI” (diversity, equity and inclusion), including measures specifically directed at TK-12 public education, some of which have been enjoined and may not currently be enforced.

On Feb. 14, McMahon issued a Dear Colleague Letter (DCL) alleging that public educational institutions nationwide have been violating Title VI through DEI practices. The letter did not provide specifics as to what the Department of Education (ED) believes constitute such practices. The DCL cited Students for Fair Admission v. Harvard, a U.S. Supreme Court case that ruled affirmative action in admissions violated the Constitution. (No local educational agency in California may use affirmative action, as such programs are unlawful under Proposition 209.) The letter stated that, within 14 days, the ED would take action against educational institutions, including removal of federal funds, that the department believed violated its terms. The implication was that any DEI programs were required to be ended within the 14-day period. The department has opened 45 investigations into institutions of higher education since the letter. On Feb. 27, the ED opened the “EndDEI Portal” for individuals to report DEI programs being used by public educational institutions.

On the heels of the DCL, the ED issued a Frequently Asked Questions (FAQ) document that similarly did not specifically define what programs and activities constituted “unlawful DEI” as interpreted by the ED, but stated “school-sponsored or school-endorsed racially segregated aspects of student, academic, and campus life, such as programming, graduation ceremonies and housing, are legally indefensible.”

In line with the ED’s allegation that public educational institutions have been violating Title VI with DEI programs, the ED issued a letter requiring all LEAs to re-certify that they are complying with Title VI, as described in the DCL and FAQ. (The California Department of Education had already certified compliance with Title VI on behalf of all LEAs in California.)

Between April 24-25, three courts took action to enjoin or stay various enactments by the ED. In American Federation of Teachers, et al. v. U.S. Department of Education, et al., a federal judge for the United States District Court in the District of Maryland issued a stay postponing the effective date of a letter issued by the Trump Administration that threatened to withhold funds from K-12 schools utilizing DEI programs pending final resolution of the litigation. Importantly, the stay only applies to the DCL issued by the ED on Feb. 14 and does not stay the FAQ or the EndDEI portal, but does apply to the certification requirement because it is an implementation of the DCL. The court’s stay applies nationwide without limits. The plaintiffs had argued that the DCL violated the First Amendment free speech and association clauses and the Fifth Amendment due process clause of the Constitution, as well as various aspects of the Administrative Procedures Act (APA).

In NAACP v. U.S. Department of Education, et al., a federal judge in the U.S. District Court in Washington, D.C. issued a nationwide preliminary injunction, preventing the ED from enforcing the penalties threatened in its certification request to educational institutions. The NAACP claims that the ED’s DCL and the subsequently issued FAQ document and certification requirement violate its student members’ First Amendment rights to receive information and freely associate, the APA, and, by being unconstitutionally vague, the Fifth Amendment Due Process clause. While denying the preliminary injunction as to the First Amendment and APA claims for a variety of reasons, the court found that NAACP was likely to succeed on the merits as to its Fifth Amendment claim that the ED’s certification requirement was void for vagueness. The court concluded that the ED’s certification requirement, which threatened serious financial and other penalties without sufficiently defining the conduct that might trigger liability, violated the Fifth Amendment’s prohibition on vagueness.

Finally, in National Education Association, et al v. U.S. Department of Education, et al., a federal judge in the U.S. District Court for the District of New Hampshire enjoined the DCL and its FAQ, the certification requirement, and the EndDEI Portal. The court found that the plaintiffs were likely to succeed on their Fifth Amendment due process claim due to vagueness, their First Amendment free speech claim and their claim that the DCL was a final action that violated the APA. The court enjoined the FAQ, certification requirement, and EndDEI portal created in implementation of the DCL. The injunction is not a nationwide injunction, so it only bars the implementation of these ED requirements as to the plaintiffs, their members, and any entity that employs, contracts with, or works with one or more of the plaintiffs or one or more of their members.

The chart below details the current status of the various documents issued by the ED:

The injunctions at issue are preliminary in nature and subject to appeal. CSBA will provide updates as these cases move through the courts.