DEI Enforcement Efforts Hit Judicial Roadblocks

Multiple court decisions have temporarily blocked the Department of Education from enforcing some elements of its efforts to end diversity, equity, and inclusion (DEI) initiatives. These cases include rulings related to the agency’s February 14 DEI guidance and its attempt to implement a certification requirement pursuant to the Trump Administration’s executive order on DEI.

DEI Guidance

On February 14, the Department released controversial and confusing guidance on DEI programs’ compliance with federal civil rights laws. Last week, a federal judge in Maryland found that the Department had likely failed to follow proper procedure when issuing the guidance. As a result, the court issued a stay that temporarily pauses the guidance from going into effect while the litigation proceeds.

The case did not address the February 28 DEI guidance issued by the Department. That guidance remains in effect.

DEI Executive Order

In his January executive order addressing DEI, President Trump instructed federal agencies to include in all federal grants and contracts a provision requiring grantees and contractors to certify that they do not operate any DEI activities that violate applicable federal civil rights laws. Notably, this provision also requires institutions to agree that their compliance with federal civil rights laws is a “material” condition of the grant or contract for purposes of enforcement under the False Claims Act (FCA). Such a condition potentially exposes private, nonprofit colleges or universities to broad liability – including monetary damages – and increased litigation under the FCA, which permits private individuals to file suit for violation of material grant or contract conditions on behalf of the government. 

In April, the Department issued its certification requirement and directed recipients of federal K-12 funding to adopt it. Last week, a federal judge in Washington, D.C. granted a preliminary injunction blocking the Department from implementing the certification requirement after ruling that the requirement is likely to be found void for vagueness under the Fifth Amendment.

Although the litigation involves K-12 funding and the injunction applies to the Department’s actions and not the executive order itself, the court’s broad ruling nonetheless means that the Department is currently precluded from requiring institutions of higher education to adopt such a certification requirement.

For more information, please contact:
Jody Feder