DEI Updates: Understanding the Pending Litigation and New OCR FAQs

The DEI landscape has changed once again. In the past two weeks, a federal judge issued a preliminary injunction temporarily halting certain provisions of the Trump Administration’s executive orders related to DEI. A new lawsuit has been filed in federal court over the Dear Colleague letter issued by the U.S. Department of Education, Office for Civil Rights (OCR). And finally, OCR issued an FAQs document to provide further guidance with respect to its February 2025 Dear Colleague letter issued to educational institutions. Below, we summarize each of these developments and their key takeaways. 

1. Federal Court Issues Preliminary Injunction against Executive Orders

Summary

On February 21, 2025, a federal judge in Maryland issued a nationwide preliminary injunction related to President Trump’s DEI-related executive orders. The injunction stems from a lawsuit filed on February 3, 2025 by the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore against the Trump Administration. The lawsuit claims that certain provisions of the two DEI-related executive orders violate the First Amendment’s protection of free speech and are unconstitutionally vague.

Most relevant for educational institutions is Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, which in part requires every federal grant recipient to certify that they do not operate “illegal DEI” programs. This is known as the Certification Provision. The implication is that in order to be able to truthfully comply with the Certification Provision, grant recipients would have to cease offering any DEI programs viewed as illegal and remove any reference to them on an institution’s platforms.

The preliminary injunction in part blocked the Certification Provision. The judge held that the plaintiffs were likely to succeed on their claim that it violates the First Amendment because it constitutes a content- and viewpoint-restriction on the speech rights of federal grantees. Specifically, the judge noted that the provision chills speech that might be considered related to DEI.

The judge also held that the Certification Provision overreaches in applying to all work of a grantee, whether funded by the government or not. The judge noted that when the federal government funds a program or activity, it cannot leverage funding to regulate speech outside the program itself.

Additionally, the judge noted that because the Executive Order is vague, federal grantees are unable to know which of their DEI programs, if any, are illegal. For these reasons and others, the judge held that Certification Provision, among others, must be stayed while the lawsuit over the Executive Order proceeds

Takeaways

• As a result of the preliminary injunction ruling, educational institutions will not, for the time being, be required to certify that they offer no “illegal DEI” programs. This may change, however, as the preliminary injunction ruling will likely be appealed.

• Additionally, it’s important to note that the preliminary injunction does not stop employees, students, agencies like the EEOC, or third-party organizations from bringing claims that existing DEI programs violate federal anti-discrimination laws like Title VII or Title VI. 

2. OCR Dear Colleague Letter Lawsuit

Summary 

On February 25, 2025, the American Federation of Teachers and the American Sociological Association filed a lawsuit challenging the legality of the February 14, 2025 Dear Colleague letter. The plaintiffs here make similar constitutional arguments to those made in the lawsuit against the DEI-related executive orders, focusing on the vagueness of the letter and how it will chill speech and voluntary groups protected by the First Amendment. In addition, they argue that the Dear Colleague letter violates the Administrative Procedures Act because the change in policy was “arbitrary and capricious,” exceeded the Department of Education’s authority under Title VI, and did not go through the notice-and-comment rulemaking process. The plaintiffs ask the federal district court in Maryland to declare the letter unlawful and unconstitutional and to enjoin the Department of Education from enforcing or taking any steps to implement the letter. The court has not taken any action yet on the plaintiffs’ request

Takeaways

• The Department of Education currently is not blocked from enforcement activities that would be consistent with the Dear Colleague letter and the FAQs described above. The Dear Colleague letter and the FAQs relied directly on the Department’s interpretations of Title VI, rather than the recent executive orders, and the preliminary injunction against parts of the DEI-related executive orders does not extend to the Dear Colleague letter.

• As with many similar cases, the status of the challenged federal actions can change quickly if the district court enters an injunction or if an appellate court blocks or reverses that injunction.

3. OCR FAQs on Race Discrimination Under Title VI

Summary 

The FAQs document, which was released on March 1, 2025, follows OCR’s February 14, 2025 Dear Colleague letter. It answers key questions pertaining to OCR’s interpretation of the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”). It also discusses how OCR will apply the SFFA decision in its enforcement of Title VI of the Civil Rights Act (“Title VI”) and analysis of DEI programs and initiatives in educational institutions.

Applying the reasoning in SFFA, in which the Court found that considering a student’s race in college admissions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI, the FAQs describe policies and programs within educational institutions that OCR will consider unlawful uses of racial preferencing or racial stereotyping in violation of Title VI. In addition, the FAQs clarify OCR’s position on “DEI programs” in educational institutions, drawing a distinction between programs that merely focus on “diversity,” “equity” and “inclusion,” and those that use such terms to advance discriminatory policies and practices. 

Takeaways

• In distributing educational benefits and resources, such as admissions spots, financial aid, awards, scholarships, prizes, administrative support or job opportunities, taking into account a student’s race would violate Title VI, even if race is only being considered a positive or “plus factor,” because an advantage to one race in a competitive process is necessarily a disadvantage to those of a different race. 

• Educational institutions may use terms such as “diversity,” “equity,” or “inclusion” in connection with a particular policy or program without violating Title VI. However, institutions need to be careful that these terms are not used to advance programs that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of any race.

• Educational institutions may offer programs that focus on the interests of a particular culture or heritage without violating Title VI, provided that the programs are open to all students regardless of race. Likewise, educational institutions may promote educational, cultural or historical observances that recognize historical events, such as Black History Month or International Holocaust Remembrance Day, without violating Title VI. However, any programs of this nature must not exclude students of a particular race, discourage individuals from attending due to their race, or create a hostile environment for those that do attend.

• The FAQs acknowledge that federal law prohibits the Department of Education from controlling the content of school curriculum, and discussions on topics related to race or DEI do not necessarily violate Title VI. However, compliance with state and local curricular requirements will not absolve educational institutions of their obligation to avoid creating a hostile environment through “race based policies and stereotypes.”

• The FAQs distinguish between K-12 and higher education institutions, noting that conversations on race or DEI programs at higher education institutions are less likely to create a racially hostile environment. In analyzing whether a racially hostile environment exists, OCR will consider the facts and circumstances of each case, including the age of the students and relationship of the individuals involved.

• As it relates to enforcement, OCR confirmed that it will be utilizing its complaint procedures to address any allegations brought under Title VI or any other law enforced by OCR. If OCR determines that an educational institution failed to comply with any civil rights law it enforces, OCR will first contact the institution and attempt to negotiate a voluntary resolution agreement, which is consistent with past administrations. If a school is unwilling to negotiate a resolution, OCR will inform the institution of the consequences, which may result in OCR initiating administrative proceedings or referring the case to the Department of Justice. The newly released 2025 Case Processing Manual outlines the procedures that OCR will follow when processing and investigating claims.

We will continue to monitor updates to federal guidance and relevant litigation. For any questions related to compliance with civil rights laws or recent developments please contact your Robbins Schwartz attorney. Institutions that receive communications from OCR about any alleged violations or other compliance concerns should contact their legal counsel immediately about an appropriate response.