Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Education department’s ‘Dear colleague’ letter was unlawful, says federal court, as was certification requirement, (Aug 18, 2025)

By Brandi O. Brown, J.D.

“[B]y leapfrogging important procedural requirements, the government has unwittingly run headfirst into serious constitutional problems.”

A federal court in Maryland ruled late last week that the “Dear Colleague” letter and its accompanying certification requirement issued by the U.S. Department of Education (DOE) in February were unlawful, and it has vacated them pursuant to the Administrative Procedure Act (APA).

The letter. On February 14, 2025, the U.S. Department of Education published a “Dear Colleague Letter” explaining the new administration’s positions with respect to diversity, equity, and inclusion (DEI) principles and federal antidiscrimination law. The letter contended that, in recent years, educational institutions had “embrace[d]... pervasive and repugnant race-based preferences” and that “other forms of racial discrimination have emanated through every level of academia.” It mentioned alleged impermissible use of race as a factor in admissions, financial aid, hiring, training, and “other institutional programming.”

The letter further stated that under its interpretation of Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (SFFA), “[i]f an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law.” It also noted that DEI programs “stigmatize students who belong to particular racial groups based on crude racial stereotypes; and concluded by reiterating that it is “notice of the Department’s existing interpretation of federal law” and pledged that the agency will vigorously enforce the law.

Affirmative certification of compliance. It instructed education institutions to ensure that their policies and actions comply with existing civil rights law; cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions to circumvent prohibited uses of race. A few weeks after the letter, the Department of Education announced that it would require states and school districts to affirmatively certify their compliance with its interpretations of Title VI and SFFA within 10 days. In March, the DOE, citing the letter, announced dozens of Title VI investigations.

Lawsuits. These developments were challenged in this lawsuit by the American Federation of Teachers. The question is whether they created new legal obligations or only restated existing law. In April, the court stayed the Letter under Section 705 of the APA but declined to rule on the Certification Requirement. In the meantime, other courts dealt with challenges to the letter and other requirements.

Also in April, a New Hampshire federal court granted a preliminary injunction enjoining the government from “enforcing or implementing” the Letter, the frequently asked questions (FAQs) associated with the Letter, the End DEI portal, and the Certification Requirement and, the same month, a D.C. federal court denied a motion for preliminary injunction as to the Letter but granted a nationwide preliminary injunction as to the Certification Requirement. “In sum: at present, the Letter is stayed and enjoined, and the Certification Requirement is enjoined twice over,” this court noted.

Vacated as unlawful. Now, this court has similarly concluded that these plaintiffs have shown that “neither challenged agency action was promulgated in accordance with the procedural requirements of the APA, and that both actions run afoul of important constitutional rights.”

Though the President is entitled to enact his agenda, the court explained, “The stringent procedures outlined by the APA are not hollow gestures designed to manufacture the appearance of fair and reasoned decisionmaking; they exist to ensure that agencies stay within the bounds of their delegated authority and exercise that authority within the constraints of the law more broadly.” In this case, “by leapfrogging important procedural requirements, the government has unwittingly run headfirst into serious constitutional problems.”

Ultimately, the court concluded that both challenged actions must be vacated. The letter and the certification requirement therefore “are HELD UNLAWFUL and VACATED pursuant to the APA.”

The case is No. SAG-25-628.

Judge: Gallagher, S.

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