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President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington. (AP Photo/Alex Brandon)
The Trump administration is attempting to “radically upend” and “re-write” civil rights law as it applies to the realm of public education, a lawsuit filed Tuesday in Maryland federal court alleges.
On Valentine’s Day, the civil rights division within the U.S. Department of Education (DOE) sent out a “Dear Colleague” letter to educational institutions that receive federal funding. The government warns institutions “they must cease using race preferences and stereotypes as a factor in their admissions, hiring, promotion, compensation, scholarships, prizes, administrative support, sanctions, discipline, and beyond” or “face investigation and loss of federal funding.”
The plaintiffs, in their 37-page lawsuit, say the DOE’s guidance “misrepresents the state of the law” under the guise of reiterating “existing legal requirements.” And this effort, the lawsuit claims, is in violation of the First Amendment, Fifth Amendment, and a relevant federal statute governing the actions of administrative agencies.
“The Department of Education is attempting to establish a new legal regime when it has neither the lawmaking power of Congress nor the interpretative power of the courts,” the filing reads. “The Letter fails to provide definitions and objective standards for assessing discrimination in violation of Title VI, or to assess what conduct is lawful. Thus, its references to discrimination and nondiscrimination are too vague to give clear notice of what conduct is supposedly prohibited.”
Led by the American Federation of Teachers and its Maryland affiliate, the lawsuit seeks a declaratory judgment that the Feb. 14 letter is “unlawful and unconstitutional,” a determination that the letter is “arbitrary and capricious” under the Administrative Procedure Act, and a preliminary injunction blocking the government “from enforcing or taking any steps to implement” the letter.
The foremost problem with the letter is that it violates First Amendment rights to free speech and free association, according to the lawsuit. These violations are achieved in various ways, the plaintiffs allege.
The letter “penalizes the protected speech” of the plaintiffs’ members with threats to withhold funds and launch investigations “for conducting any diversity, equity and inclusion programs, or teaching lessons that may reference race or historical events that impacted specific racial groups or ethnicities,” according to the lawsuit.
The plaintiffs also allege the letter infringes on the right of free association by broadly forbidding “voluntary associations or groups for students or faculty if they are connected to race, color or national origin — even if such groups are open to all.”
A parade of horribles argument follows, at length:
This prohibition would include: voluntary student organizations that are open to everyone but based around a protected characteristic (such as a Jamaican Students Association or Chinese-American student club or Irish-American Heritage Organization); voluntary recognition ceremonies at graduation (such as the Black Student Association or Latin American Student Association hosting a ceremony to recognize its members who are graduating); cultural centers at universities (such as an Afro-American Cultural Center); fraternities or sororities associated with particular heritage (such as historically Black fraternities or sororities or historically Italian fraternities that host programming celebrating that heritage); optional housing based on student groups (such as living in a Jewish Cultural House, open to everyone but focused on celebrating Jewish ancestry, customs, and religion), and similar activities.
“Throughout our nation’s history, courts have consistently prevented various state actors, including executive branch officials, from trampling the First Amendment rights of federal fund recipients,” the lawsuit goes on.
Still, the plaintiffs concede, some of the viewpoints, expression, and other conduct apparently disfavored by the government in the letter is a decidedly murky affair. And navigating that murkiness, the plaintiffs say, is another legal problem altogether.
That is, the sorts of prohibited programming and activities that could lead to investigations and cuts are, in many instances, unclear, according to the lawsuit. This makes the administration’s education-based anti-diversity, equity, and inclusion efforts unconstitutionally vague under the Fifth Amendment, the lawsuit claims.
“The Letter fails to define or adequately describe many of the terms and concepts the Letter prohibits,” the lawsuit reads. “The Letter does not define the words ‘diversity,’ ‘equity,’ ‘inclusion’ or ‘DEI’ and fails to describe ‘DEI programs’ it says are discriminatory — other than to refer to them as discriminatory.”
The lawsuit then employs a laundry list format to stake out another version of a parade of horribles argument, at length:
○ Teaching a college course on the history of the U.S. South and Jim Crow, urban policy and planning, modern American history, or the history of housing and segregation.
○ Leading a class discussion on the history of slavery in America or Japanese internment during World War II.
○ Maintaining Departments of African American Studies, Arab American Studies, Asian American Studies, or Jewish Studies.
○ Hosting a celebration for Black History Month, Holi, Eid, or Lunar New Year.
○ Hosting a Latin American culture club or a Japanese film club.
○ Counseling a student who was called a racial or ethnic slur and is upset about that experience.
○ Maintaining a school mission built around advancing excellence and equity.
○ Telling students they cannot use a racial slur and explaining why other students might find the slur hurtful.
○ Contracting with a non-profit organization dedicated to improving educational outcomes for first-generation students or students of color.
○ Displaying pictures of notable African Americans during Black History Month.
○ Sponsoring a tutoring program designed to help low-income students excel, if a disproportionate number of such students are people of color.
To hear the plaintiffs tell it, each of the above-listed activities might very well run afoul of the administration’s new guidance — but the guidance is so poorly-worded that it is not at all clear whether those actions would actually be prohibited.
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Moreover, the lawsuit says, the letter contradicts previous “race-conscious” guidance issued by the federal government — including such race-conscious efforts by President Donald Trump himself.
Finally, the lawsuit claims the guidance in the letter was improperly issued by the agency and subagency in question.
“The Letter is arbitrary and capricious,” the filing alleges. “It fails to acknowledge, much less sufficiently explain, the change in position from prior guidance issued by [the federal government]. Agencies cannot depart from prior policies without acknowledging that they are making such a change and explaining their reasoning for doing so.”
At heart, the lawsuit makes an argument that the Trump administration is impermissibly attempting to micromanage how teachers can instruct their students — all in the name of stamping out diversity.
“Plaintiffs, and countless schools, organizations, and individuals across the country, recognize diversity is a critical ingredient to fostering intellectual curiosity and educational attainment,” the lawsuit reads. “Schools, from pre-K to college, are where we learn about our world and each other. Students not only acquire knowledge and develop skills, but also wrestle with hard truths and engage with those who may have different perspectives. Schools in the United States are not only engines to create scholars, they also create community. Innovation, entrepreneurship, and the arts are born where ideas are sparked through debate and not stifled through homogeny.”
In service of this effort, the lawsuit says, the government is stretching a landmark 2023 U.S. Supreme Court decision outlawing affirmative action beyond any reasonable interpretation.
“The Court’s decision did not have the far-reaching effect Defendants claim,” the lawsuit goes on. “It did not extend outside of higher education admissions at all, such as to admission at K-12 schools or any other aspect of K-12 schools. It did not extend beyond race-based programs at all, leaving untouched the law on race-neutral programs that is simply beyond the scope of the [Supreme Court] decision. Nor did it change the law in any other area of civil rights with respect to education.”
