OCR’s February 14, 2025 Dear Colleague Letter Faces Legal Challenge

On February 25, 2025, the American Federation of Teachers, American Sociological Association, and American Federation of Teachers-Maryland (the “Plaintiffs”) filed a lawsuit against the U.S. Department of Education, Acting Secretary of Education, and Acting Assistant Secretary for the Office for Civil Rights (the “Defendants”) in federal court seeking to block and permanently enjoin enforcement of the Dear Colleague Letter (the “DCL”)[1] issued by the U.S. Department of Education Office for Civil Rights on February 14, 2025, regarding compliance with Title VI of the Civil Rights Act of 1964 (“Title VI”).[2]

Plaintiffs challenge the DCL on three grounds. First, Plaintiffs allege the DCL misrepresents the state of the law under the Constitution and Title VI in the wake of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 801 (2023) (“SFFA”), which generally proscribed race conscious admissions practices. Second, Plaintiffs allege that the DCL’s newly announced standard for evaluating discrimination claims under Title VI is unconstitutionally vague. And, finally, Plaintiffs argue that the DCL’s seeming prohibition on certain teaching methods and practices is unconstitutional.

Specifically, Plaintiffs contend that the DCL violates First Amendment rights to free speech, expression, and association by threatening investigations and enforcement actions against institutions that implement diversity, equity, and inclusion (“DEI”) programs or offer curricula addressing race or historical events related to racial issues. Plaintiffs further assert that the DCL violates the Due Process Clause of the Fifth Amendment by establishing vague standards that “authorize[ ] or encourage[ ] seriously discriminatory enforcement.” Last, under the Administrative Procedure Act, Plaintiffs argue that the Department of Education exceeded its statutory authority, and that the DCL is arbitrary and capricious.

Plaintiffs seek a declaratory judgment that the DCL is unlawful, arbitrary and capricious, and unconstitutional. Alternatively, Plaintiffs request that the Maryland Federal District Court issue an injunction prohibiting Defendants from enforcing or taking any steps to implement or apply the DCL. Absent an injunction, enforcement of the DCL is set to proceed on February 28, 2025.

This lawsuit was filed in the same court that recently issued a nationwide preliminary injunction blocking several provisions of Executive Order 14173, which sought to curtail certain DEI practices and initiatives in the private sector, including higher education.[3] That injunction halted a requirement that federal contractors and grant recipients certify compliance with federal non-discrimination laws as understood in light of the Order, a certification that would have certainly encompassed the interpretation of federal civil rights obligations as described in the DCL.[4]

Cullen and Dykman LLP will continue to monitor challenges to enforcement of the DCL and other Executive Actions and is here to assist you in evaluating your institution’s policies and procedures in light of recent developments surrounding Title VI and DEI principles.

Should you have any questions, please contact Jennifer McLaughlin (jmclaughlin@cullenllp.com), Dina Vespia (dvespia@cullenllp.com), Michael DiSiena (mdisiena@cullenllp.com), Nicole Donatich (ndonatich@cullenllp.com), or Jordan Milite (jmilite@cullenllp.com).

This advisory provides a brief overview of the most significant changes in the law and does not constitute legal advice. Nothing herein creates an attorney-client relationship between the sender and recipient.

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Footnotes

[1] The U.S. Department of Education Issues Dear Colleague Letter Regarding Title VI Compliance, February 16, 2025, https://www.cullenllp.com/blog/the-u-s-department-of-education-issues-dear-colleague-letter-regarding-title-vi-compliance/

[2] Am. Federation of Teachers, et al. v. U.S. Dep’t of Educ., No. 1:25-cv-00628-SAG (D. Md. Feb. 25, 2025).

[3] Nat’l Ass’n of Diversity Officers in Higher Educ., et al., v. Donald J. Trump, et al., No. 1:25-cv-00333-ABA (D. Md. Feb. 21. 2025).

[4] Exec. Order No. 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, Executive Order of January 21, 2025, 90 Fed. Reg. 8633, 8634-35 (Jan. 31, 2025).