Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D. Md.: Effective date of DOE’s ‘Dear Colleague Letter’ temporarily stayed, (Apr 25, 2025)

By Kathleen Kapusta, J.D.

“Plaintiffs have shown that the government likely did not follow the procedures it should have, and those procedural failures have tangibly and concretely harmed the Plaintiffs.”

Granting in part a preliminary injunction motion filed by, among others, the American Federation of Teachers, its Maryland-based affiliate, and an Oregon school district, a federal court in Maryland temporarily postponed the effective date of the Department of Education’s “Dear Colleague Letter,” which purports to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance.” In addition to showing they are likely to prevail on their challenges under the APA, including that the letter is a legislative rule that did not go through notice and comment, is arbitrary and capricious, and is contrary to constitutional rights, the plaintiffs also established irreparable harm, including the suppression of First Amendment activity. The court, however, denied the motion insofar as it concerned the DOE’s requirement that states and schools certify compliance with its interpretation of Title VI and Students for Fair Admissions v. Harvard (SFFA) (American Federation of Teachers v. Department of Education, No. SAG-25-628 (D. Md. Apr. 24, 2025)).

The letter. In February 2025, the DOE issued the letter, which begins by stating that in recent years, educational institutions’ “embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated through every level of academia,” and mentions the impermissible use of race as a factor in admissions, financial aid, hiring, training, and “other institutional programming.”

The letter further states that under its interpretation of 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;” notes that DEI programs “stigmatize students who belong to particular racial groups based on crude racial stereotypes; and concludes by reiterating that it is “notice of the Department’s existing interpretation of federal law” and pledges that it will vigorously enforce the law. It instructs 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. In March, the DOE, citing the letter, announced 51 Title VI investigations.

Certification requirement. On April 3, the DOE announced that state education agencies and the school districts within them had to certify their compliance with the administration’s interpretation of Title VI and SFFA no later than April 13, 2025.

Lawsuit. The plaintiffs sued the DOE in February, asserting claims under the First and Fifth Amendments and the Administrative Procedure Act. They sought, among other things, a preliminary injunction enjoining the DOE from enforcing or implementing the letter. After the DOE announced its certification requirement, the government, in a related case in District of New Hampshire, agreed not to “initiate any enforcement action, investigation, or otherwise take action based on the Dear Colleague Letter issued on February 14, 2025, and subsequent actions implementing the Letter” until after April 24.” The plaintiffs filed an expedited preliminary injunction seeking to also enjoin the certification requirement.

Certification motion. Quickly disposing of the plaintiffs’ request for an independent preliminary injunction against DOE’s certification requirement, the court pointed out that there were no facts relating to certification in the amended complaint. Thus, it denied their motion seeking a separate injunction as to the certification requirement.

Standing. Addressing standing, the court noted that only one plaintiff needs standing for the case to proceed and the Oregon school district, which receives $40 million in federal funding, has standing. It alleges that it has been put in an “impossible position, not knowing what conduct, speech, perspectives, lessons, programs, activities, or meetings [DOE] would consider prohibited by the Letter,” and that it is experiencing a “chilling effect of their First Amendment rights” because it fears “that many activities central to their work, their missions, and their employment could jeopardize their federal funding.”

It also has alleged a credible threat of enforcement or investigation based on its intent to engage in what it believes is protected First Amendment activity as it claims the letter is chilling its speech regarding race-related topics. It further asserts that the DOE’s failure to comply with the APA, and its notice-and-comment requirement, deprived it of the opportunity to raise important reliance interests and its fears regarding the suppression of lawful speech. Accordingly, the court found the district established standing to challenge the letter.

Final agency action. As to whether the letter is subject to judicial review as a final agency action, the court observed that it “sets forth the agency’s position on what the law means, and binds any ‘colleague’ or entity subject to DOE regulations, who may lose federal funding if they do not comply.” Noting also that the DOE had cited the letter as the basis for 51 investigations it has opened, the court observed that it applies the letter as if it is binding. More importantly, the court said, the letter’s directives are changes from prior law that appear binding.

Though the government argues that the letter merely restates schools’ obligations under civil rights law, “Title VI and SFFA,” the court stated, “have never been interpreted to preclude teaching about concepts relating to race.” Accordingly, the court found the letter was a final agency action.

Likelihood of success on the merits. Turning to the first of the preliminary injunction factors, likelihood of success on the merits, the court noted that the plaintiffs raise several challenges under the APA, including that the letter is a legislative rule. Agreeing, the court explained that the letter prescribes new law and policy and has the force and effect of law and thus is more than an interpretive rule.

As a legislative rule, it was required to go through notice and comment. Rejecting the government’s contention that it satisfied this requirement by providing, in footnote 3 of the letter, mailing and email addresses for anyone “interested in commenting,” the court pointed out that the requirements for notice-and-comment rulemaking are “more demanding than an after-the-fact opportunity to send an email.” Thus, the court found the plaintiffs are likely to succeed on the merits of their APA claim.

Not in accordance with law. The plaintiffs also argued that the letter exceeds the authority Congress delegated to the DOE in the Department of Education Organization Act (DEOA). Pursuant to the DEOA, the DOE cannot exercise “direction, supervision, or control” over “the curriculum, program of instruction, administration, or personnel of any educational institution....” According to the plaintiffs, the letter violates the DEOA by “directing what educators and institutions can teach in ways that are not required by Title VI.

Pointing to statements in the letter such as referring to “toxically indoctrinat[ing] students with the false premise that the United States is built upon systemic and structural racism” as a “discriminatory practice,” the court found it “hard to square” those comments with the government’s pronouncement that the letter does not prescribe curricular choices. Moreover, said the court, the government has stated that it believes it can regulate the content of curriculum if it is discriminatory, stigmatizing, stereotyping, or “deny[ing] students the ability to participate fully in the life of a school.”

“By declaring broad categories of classroom speech discriminatory, in the context of a Letter threatening enforcement actions for discriminatory practices, DOE is exercising ‘direction, supervision, or control’ over ‘the curriculum, program of instruction, administration, or personnel of [schools,]’” the court declared, finding the plaintiffs likely to succeed on the merits of this claim as well.

Arbitrary and capricious. As to the plaintiffs’ contention the letter was arbitrary and capricious because the DOE failed to provide an explanation for its change in position, the court pointed out that it already rejected the government’s assertion the letter merely restates existing law. The court was “most concerned by DOE’s change in position regarding its authority to regulate curriculum, and its decision to prospectively categorize content as discriminatory.”

Further, said the court, agency actions are arbitrary and capricious where they lack a “factual basis” and here the government admitted that there is no administrative record underlying the letter.

Next, the court found that the government misapprehended the scope of Title VI and SFFA. “Even extrapolating SFFA’s holding, as the government does, to extend far beyond college admissions, it does not proscribe any particular classroom speech, or relate at all to curricular choices. Nor does Title VI.” This misapprehension, the court observed, led the DOE to issue a guidance that conflicts with its own regulations and case law.

For these reasons, the court found the plaintiffs were likely to succeed on the merits of their claim that the letter is arbitrary and capricious.

Contrary to constitutional rights. Regarding the APA’s requirement that courts must “set aside” any final agency action that is contrary to constitutional rights, the court found the letter’s provisions proscribing specific forms of classroom speech likely run afoul of the First Amendment by regulating speech based on its content. The government, said the court, has singled out classroom speech regarding “systemic and structural racism” and “teach[ing] students that certain racial groups bear unique moral burdens that others do not.” The letter, the court continued, improperly terms those categories of speech “discriminatory,” “stereotyping,” and “stigmatizing”—all terms that can give rise to enforcement under Title VI.

“As to this very limited aspect of the Letter at least, where it regulates specific forms of speech of a particular viewpoint by declaring them discriminatory, and therefore unlawful, the Plaintiffs are likely to succeed on their First Amendment claim,” the court stated, noting that “this constitutional issue is inextricably bound within the other APA issues in this case, and perhaps illustrates why compliance with procedures is important.”

Irreparable harm. Finding next that the irreparable harm factor favors the plaintiffs, the court pointed out that where “a Plaintiff has been deprived of notice and the opportunity ‘to have their comments considered prior to the promulgation of a rule which threatens’ serious harms to their interests, they have suffered ‘irreparable harm.’” Here, the plaintiffs outlined several ways in which the deprivation of their right to comment has resulted in concrete harms, including the suppression of First Amendment activity, and the loss of constitutional freedoms, the court explained “‘unquestionably constitutes irreparable injury.’”

Public interest/balance of equities. While the government cited legitimate interests in “robust civil rights enforcement” and “implementing the President’s priorities consistent with [DOE’s] legal authorit[y],” to the extent it wishes to enforce existing civil rights law, said the court, “the Department is free to do so but must do so within the bounds of the law.”

Remedy. As to the proper remedy here, the court found that postponing the letter’s effective date pending a final resolution in this matter was the narrowest relief possible to protect the plaintiffs from irreparable injury. It denied the plaintiffs’ motion insofar as it asked the court to enjoin the Frequently Asked Questions published by the DOE stemming from the letter and to end the department’s DEI portal that was set up to report “illegal discriminatory practices.” The court also declined to order the DOE to enforce Title VI in line with specified prior guidances and to order it place those guidances back on its website.

Finally, the court rejected the government’s suggestion that relief should be limited to the parties here, finding instead that “it would make little sense to limit the stay of a Letter that is likely procedurally and substantively defective in numerous respects to the parties in this case.”

The case is No. SAG-25-628.

Judge: Gallagher, S.

Attorneys: Andrew Liang Bookbinder (Democracy Forward Foundation) for American Federation of Teacher, American Sociological Association, American Federation of Teachers-Maryland, and Eugene School District 4J. Ariana Wright Arnold, U.S. Department of Justice, for U.S. Department of Education, Denise L. Carter, Craig Trainor and Linda McMahon.

Companies: American Federation of Teachers; American Sociological Association; American Federation of Teachers-Maryland; Eugene School District 4J

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