Important Updates Related to DEI, OCR Investigations, the U.S. Department of Education, and Transgender Students

Robbins Schwartz continues to track and report on important federal and state updates impacting educational institutions and employers. Below are the latest updates to keep you informed:

1. DEI Executive Order Litigation

As we previously reported, on February 25, 2025, a federal judge in Maryland issued a nationwide preliminary injunction related to certain provisions contained in President Trump’s DEI-related executive orders. The injunction stemmed from a lawsuit alleging that these provisions violate the First Amendment’s protection of free speech and are unconstitutionally vague. The practical effect of the preliminary injunction was that the Trump Administration temporarily could not move forward with enforcing the executive orders pending the outcome of the lawsuit over the orders.

As expected, the government not only filed an appeal of the preliminary injunction ruling, but also an emergency motion to stay, or stop, the preliminary injunction pending the outcome of the appeal of the preliminary injunction ruling. On March 14, 2025, a three-judge panel on the Fourth Circuit Court of Appeals granted the government’s motion to stay enforcement of the preliminary injunction. Notably, the court as a whole did so without explanation, but each individual judge issued concurring opinions in which they expressed their individual reasoning in support of the panel’s decision. 

The Fourth Circuit’s stay of the preliminary injunction means that the Administration is once again able to enforce the DEI-related executive orders while litigation over them proceeds. As has been the takeaway in recent months, educational institutions and employers of all kinds may wish to audit or review programs, initiatives and other efforts that may be deemed “illegal DEI.” Consult your Robbins Schwartz attorney for counsel on or assistance with this review. 

2. EEOC and DOJ Issue Joint Guidance on DEI-Related Discrimination in the Workplace

On March 19, 2025, the U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice issued joint guidance entitled What You Should Know About DEI-Related Discrimination at Work. The guidance does not introduce any entirely new information, but rather applies existing understandings of anti-discrimination law to the DEI context. It discusses four main issues: (1) disparate treatment, (2) limiting, segregating, and classifying, (3) harassment, and (4) retaliation. 

The guidance affirms that Title VII, the federal anti-discrimination employment law, prohibits employment-related action motivated in whole or in part by race, sex or another protected characteristic, including decisions related to hiring, firing, promotion, compensation and exclusion from programs such as training, fellowships, or mentoring. The guidance affirms that Title VII also prohibits employers from grouping employees based on race, sex, or another protected characteristic in a manner that affects their employment status or deprives them of employment opportunities. More specifically, the guidance provides that it would violate Title VII to limit membership in workplace groups, such as Employee Resource Groups (ERGs), or separating employees into groups based on race, sex or another protected characteristic when administering DEI programs or trainings. As to harassment, the guidance indicates that DEI training may constitute workplace harassment based on race, sex, or another protected characteristic based on the “design, content, or execution” of the training, but does not further elaborate on this point. Last, the guidance reiterates that retaliation against an employee for protesting what they view as unlawful discrimination, including unlawful DEI, is prohibited. 

Relatedly, the guidance also incorporates recent Supreme Court decisions and pending cases before the Court in stating that workers only have to show “some injury” or “some harm” to establish an employment discrimination case. It confirms the EEOC’s position that “there is no such thing as ‘reverse’ discrimination; there is only discrimination.” 

As with other federal agencies, this guidance from the EEOC and DOJ does not carry the force of law. That said, it provides insight into the EEOC and DOJ’s specific position as to what may constitute unlawful DEI in workplaces. Based on the guidance, employers of all kinds may, once again, wish to evaluate whether any of their programs may be considered unlawful with the assistance of legal counsel.

3. Title VI Investigations Announced

Recent announcements by the U.S. Department of Education (DOE) are starting to provide a window into how the current administration may enforce Title VI, which prohibits discrimination based on race, color and national origin by recipients of federal funding. Despite ongoing questions about the future of the Department and the Office for Civil Rights (OCR) in particular, these announcements provide examples of the administration carrying out its priorities related to antisemitism and DEI in relatively quick fashion, at least for these high-profile matters.

Early March 2025 brought a flurry of activity related to allegations of antisemitism, particularly at Columbia University. Related investigations at that institution had been announced in November 2024 and early February 2025. On March 3, 2025, DOE, the Department of Health and Human Services, and the General Services Administration jointly announced a “comprehensive review of Columbia University’s federal contracts and grants” based on “ongoing inaction in the face of relentless harassment of Jewish students.” On March 7, 2025, the same agencies and DOJ announced the cancellation of about $400 million in federal grants and contracts to Columbia. A few days later, DOE further highlighted its enforcement activities in this area by announcing it had sent letters to 60 institutions of higher education that are currently under investigation for Title VI violations related to antisemitic harassment and discrimination.

In another Friday press release, the Department announced on March 14, 2025, that it was opening about 50 investigations into colleges and universities related to racial preferences and stereotypes. Consistent with its February 14, 2025 Dear Colleague letter, several of the investigations focus on race-based scholarships that may violate Title VI. However, the vast majority of these investigations focus on institutions partnering with The Ph.D. Project, a nonprofit organization that seeks to “expand the pool of workplace talent by developing business school faculty” and “support the development of business PhDs from increasing the number of brilliant educators from all communities.” The Department’s announcement alleges that the organization limits eligibility for its programs based on the race of participants. 

These recent enforcement actions reinforce that higher education institutions should be mindful of the federal government’s attention not only to actions by employees, but also actions by third-party contractors and failures to address harassment or discrimination by students. Institutions of higher education should ensure they are conducting comprehensive investigations to document their process and findings related to student harassment and discrimination claims. Institutions that are contacted by the federal government about reported or potential violations should contact their legal counsel promptly for assistance.

4. Executive Order to Dismantle Department of Education and Department of Education Reductions in Force

On March 20, 2025, President Trump signed an executive order entitled “Improving Education Outcomes by Empowering Parents, States and Communities” directing the Secretary of Education to take “all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities.” Congressional approval is required to dismantle the DOE; therefore, it is anticipated that the “necessary steps” will include a plan to bring this before Congress. 

The White House noted that the DOE will not be completely shut down immediately and will continue to carry out critical functions, but will be drastically reduced in size. In a press release, the Secretary of Education stated, “Closing the Department does not mean cutting off funds from those who depend on them–we will continue to support K-12 students, students with special needs, college student borrowers, and others who rely on essential programs. We’re going to follow the law and eliminate bureaucracy responsibly by working through Congress to ensure a lawful and orderly transition.” The executive order notes that the Secretary will ensure the “effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.” The executive order does not comment on which federal departments will take over management of DOE responsibilities or how federal funds will continue to flow. However, it does require the Secretary to ensure allocation of federal funds complies with federal law and administration policy, including that any programs receiving financial assistance terminate illegal discrimination under the label DEI and programs promoting gender identity. 

This executive order comes in the wake of significant reductions in force of DOE employees last week, including massive cuts to OCR, Office of Federal Student Aid (“FSA”) and National Center for Education Statistics (“NCES”). The Chicago branch of OCR has been completely closed, and it is unclear what the Department plans to do with pending OCR investigations. Attorneys General from over 20 states, including Illinois, have filed a lawsuit against the Trump Administration in an attempt to stop the mass removal of Department of Education employees, alleging that this RIF will greatly restrict the ability to carry out statutorily required functions and operations. The lawsuit also requests that the dismantling of the DOE be declared illegal. We will continue to monitor the pending litigation and provide timely updates. 

5. Title IX Investigations in Illinois Addressing Access to Facilitate Based on Gender Identity

On March 20, 2025, the Department of Education, Office for Civil Rights, announced its investigation into the Illinois State Board of Education (“ISBE”), and two Illinois public school districts concerning complaints alleging discrimination on the basis of sex, under Title IX. The announcement refers to open investigations against Illinois educational entities based on policies, procedures, and/or guidance allowing access to facilities for use by students consistent with their gender identity. OCR is investigating the issue of student access to facilities, such as bathrooms or locker rooms, and whether allowing such access consistent with gender identity,  rather than limiting access based upon sex assigned at birth, is a violation of Title IX. This announcement comes on the heels of other OCR Title IX investigations regarding educational institutions’ non-compliance with the executive order of “Keeping Men Out of Women’s Sports.”

The March 20, 2025, OCR announcement cites a specific complaint against ISBE that alleges violations of Title IX, argues ISBE’s guidance is a misinterpretation of the Equal Protection Clause, and claims that student access to facilities based on gender identity is a violation of equal rights and privacy interests of students and parents. Neither the OCR announcement, nor the complaint it references, acknowledge the precedential federal case law in Illinois from the Seventh Circuit in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017) or A.C. v. Metropolitan School District 75 F.4th 760 (7th Cir. 2023).  In both cases, the United States Court of Appeals for the Seventh Circuit found that Title IX and the Equal Protection Clause require educational institutions to allow access to facilities consistent with a student’s gender identity. 

We will continue to monitor the pending investigations, and provide timely updates. Institutions that receive complaints from students, parents or other entities about Title IX violations based on sex or gender identity should contact their legal counsel promptly for assistance.