Unions Win Stays of Threat to School Funds Over DEI Programs (1)

Teachers’ unions in two federal suits saw a temporary victory Thursday in pausing the effects of a “dear colleague” letter issued by the Department of Education to schools, threatening to cut off their federal funding if they continue to maintain DEI programs.

The plaintiffs are likely to succeed on their claim that the Feb. 14 letter is impermissibly vague, Chief Judge Landya B. McCafferty said in a Thursday opinion for the US District Court for the District of New Hampshire. This ruling allowing a preliminary injunction concerns a suit brought by the National Education Association and two other plaintiffs.

The letter says that DEI programs violate Title VI of the 1964 Civil Rights Act and that it will “vigorously enforce” that interpretation, but it doesn’t make clear “what the Department believes constitutes a DEI program, or the circumstances in which the Department believes DEI programs run afoul of Title VI,” McCafferty said. “The Letter does not even define what a ‘DEI program’ is.”

The American Federation of Teachers, the American Sociological Association, the AFT of Maryland, and an Oregon school district were also granted a partial injunction in their case concerning the “dear colleague” letter Thursday by Judge Stephanie A. Gallagher of the US District Court for the District of Maryland. The plaintiffs showed that the government likely didn’t follow the procedures it should have, and they “will be irreparably harmed absent preliminary relief,” Gallagher said, adding that they’ve “shown equities and public interest favor them.”

The NEA, its state affiliate in New Hampshire, and the Center for Black Educator Development said in their complaint that the letter “radically resets” the Education Department’s “longstanding position on civil rights laws that guarantee equality and inclusion and impermissibly infringes on the authority of states and school districts over public education as well as the First Amendment rights of educators and students.”

The letter fundamentally contradicts Title VI of the 1964 Civil Rights Act, which prohibits discrimination by programs that receive federal funds, the NEA’s complaint said. The letter also violates the First Amendment speech rights of teachers and infringes on the rights of students to hear perspectives the federal government finds objectionable, it said.

The letter is also void for vagueness under the Fifth Amendment, the complaint said. It further violates the Administrative Procedure Act because it’s a final agency action, wasn’t adopted pursuant to the required notice and comment, and is arbitrary and capricious, the NEA’s complaint said. The plaintiffs in the Maryland suit similarly alleged the Education Department’s guidance would violate the First and Fifth Amendments and the APA.

In response to the NEA’s emergency request for a temporary restraining order, the Education Department previously agreed it wouldn’t initiate any enforcement actions or investigations based on the letter.

But in its objection to the plaintiffs’ request for a preliminary injunction, the Education Department said that the letter merely explained its understanding of the US Supreme Court’s holding in Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. That case dealt with the requirements of the equal protection clause and Title VI of the 1964 Civil Rights Act. The Education Department also said that the letter doesn’t have “the force or effect of law and does not bind the public or create new legal standards.”

The plaintiffs don’t have standing and are unlikely to win on the merits of their claims, the Education Department’s response said. The letter isn’t unconstitutionally vague and doesn’t implicate speech protected by the First Amendment."It addresses Title VI’s prohibition on the unprotected conduct of racial discrimination, which is, in any event, unlawful when advanced by speaking,” it said.

McCafferty also rejected the Education Department’s argument that the plaintiffs didn’t have standing. She said that they have organizational standing because they will be injured if the letter takes effect, she said.

The NEA and NEA-NH’s core activities involve training about diversity, equity, and inclusion, as well as racial and social justice, McCafferty said. CBED’s entire organizational purpose is to run programs preparing Black teachers to foster a “love of learning in Black students,” she said.

The letter’s rhetoric, “asserting that schools have engaged in ‘shameful’ and ‘repugnant’ practices in ‘every facet’ of their operations,” and the defendants’ steps to implement that rhetoric, “impair the plaintiffs’ ability to offer these programs, including programs offered in conjunction with school districts or paid for by school districts using federal funding,” McCafferty said. “In the case of CBED, the 2025 Letter threatens to put it out of business entirely,” she said.

In the New Hampshire case, the Education Department can’t enforce the letter against the three plaintiffs and “non-parties to the case: entities receiving federal funding that employ or contract with plaintiffs or plaintiffs’ members.”

The American Civil Liberties Union Foundation and the ACLU of New Hampshire represented the plaintiffs in the New Hampshire case. Democracy Forward Foundation represented the plaintiffs in the Maryland case. The US Department of Justice represented the Education Department.

The cases are Nat’l Educ. Ass’n v. Dep’t of Educ., D.N.H., No. 1:25-cv-00091, 4/24/25; Am. Federation of Teachers v. Dept. of Educ., D. Md., No. 25-cv-00628, 4/24/25.