Maryland judge preparing to rule on Trump administration's DEI letter for schools

Yahoo

19-04-2025

The Edward A. Garmatz U.S. Courthouse in Baltimore. (Photo by Christine Condon/ Maryland Matters)
Attorneys for the U.S. Department of Education argued Friday that the department's 'Dear Colleague' letter criticizing some diversity, equity and inclusion practices was merely a reminder to schools that existing civil rights law protects white children from discrimination just as much as children from a minority group.
But to opponents, the letter represents a significant change in policy, which compels teachers to restrain their speech about diversity for fear that their schools could lose access to critical federal funding.
The arguments were part of wide-ranging hearing in U.S. District Court for Maryland over a lawsuit by the American Federation of Teachers, its Maryland chapter and the American Sociological Association seeking to block enforcement of the Feb. 14 letter, which says schools that do not comply with civil rights law 'face potential loss of federal funding.'
'The government is saying, with its power of the purse: 'We don't like diversity, equity and inclusion,'' said Brooke Menschel, a senior attorney at Democracy Forward, who was representing the plaintiffs.
U.S. District Judge Stephanie Gallagher did not rule Friday on the request for a preliminary injunction that would prevent the government from enforcing its 'Dear Colleague' letter, but said she plans to issue a written ruling in the days ahead. A similar case is unfolding in New Hampshire, where a federal judge heard arguments Thursday from the government, the American Civil Liberties Union and the National Education Association. That judge is also yet to rule.
On Friday, Gallagher peppered each side with questions on a number of grounds. Did teachers have standing to challenge rules directed at school districts and states? What type of action exactly did the letter constitute? And therefore, what procedural rules did the government have to follow in order to issue it?
At one point, Gallagher probed about how the 'Dear Colleague' letter may be enforced, asking whether a school could come under investigation simply because one student reported feeling troubled by classroom discussions about the historical actions of a particular racial group.
'Some people are more sensitive to discussions in a classroom setting than others,' Gallagher said. 'Where does that line get drawn?'
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Abhishek Kambli, a Justice Department attorney, said the letter was not meant to police such classroom discussions. It was meant to address situations in which students are classified based on race, he said. He highlighted 'privilege walks,' wherein participants are categorized based on advantages and disadvantages they've faced because of their backgrounds.
He argued that the Civil Rights Act already disallows such activities because they are discriminatory, even though the discrimination may victimize students who comprise a majority group rather than a minority.
'It's highly unlikely that they're going to go after a school because they taught a certain book,' Kambli said. 'All this letter does is just clarify what the existing obligations are under Title VI [of the Civil Rights Act].'
'They're trying to make the letter into something that it's not,' Kambli said of plaintiffs.
But Menschel said that the department, through the letter, was 'putting its thumb on the scale of a particular perspective,' causing reasonable teachers to fear reprisal because of particular classroom lessons, and thereby creating a chilling effect on school speech.
One passage in the letter says that 'educational institutions have toxically indoctrinated students with the false premise that the United States is built upon 'systemic and structural racism' and advanced discriminatory policies and practices.' Menschel also pointed to the department's creation of an online portal titled 'End DEI,' through which community members can report instances of discrimination.
'The name of the portal itself points to exactly their perspective, and they are trying very hard to coerce people into sharing their views — and doing so under threat of withholding funds,' Menschel said.
But Kambli argued the portal's name was just evidence that the department has a new priority in enforcing existing civil rights law: Rooting out discrimination occurring under the guise of 'DEI.'
'It is perfectly allowable for the government to have a portal that's aimed at that particular enforcement priority,' Kambli said.
A portion of Friday's hearing focused on whether the teachers' groups and the American Sociological Association had legal standing to file suit and seek a preliminary injunction.
Kambli argued that the Department of Education does not directly regulate individual teachers or school administrators, but rather school districts. The teachers would have to show that they sustained a direct harm from the Feb. 14 letter in order to have standing in court, he said.
But the department has yet to open an investigation focused on something like classroom speech, Kambli said, so the educators' fears are only hypothetical in nature.
'If they're censoring based off of something that the DCL [Dear Colleague letter] does not say is disallowed, then that harm is self-inflicted,' he said.
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In March, the department announced that it had opened investigations into dozens of colleges and universities stemming from the Dear Colleague Letter. A department news release said 45 of the schools came under investigation because they were participating in 'The Ph.D Project,' which the release called 'an organization that purports to provide doctoral students with insights into obtaining a Ph.D. and networking opportunities, but limits eligibility based on the race of participants.'
Six schools came under investigation for 'allegedly awarding impermissible race-based scholarships,' and one is being investigated for 'allegedly administering a program that segregates students on the basis of race.'
Although none of those investigations focus on classroom speech in particular, Menschel said they provide a 'relevant and important backdrop' for assessing teachers' concerns that their own classroom conversations about diversity could result in their schools being penalized by the department.
To combat claims that the issuance of the Feb. 14 letter may have violated procedural rules, including by not offering an opportunity for public comment before implementation, Kambli argued that the department only issued the letter as a courtesy to schools. The department could have started investigating instances if considered problematic applications of DEI under existing law, he said.
'We didn't have to provide any of this anyway,' Kambli said. 'We did that to put the schools on as much notice as possible.'
But, Menschel asked, if the Dear Colleague letter didn't represent a change in policy, why did the department pull 'hundreds of pages' of prior civil rights guidance documents from its public-facing website?
Kambli argued that new presidential administrations are allowed to rescind Dear Colleague letters from prior administrations, calling it a 'common practice.'
Menschel also said the department's requirement that school systems certify their compliance with the letter indicates that it is a policy change. The plaintiffs asked\ Gallagher to pause enforcement of the letter as well as the certification requirement.
Gallagher said the latter request gave her pause, because the certification process was not mentioned in the plaintiffs' original complaint, which focused entirely on the letter because the certification process had yet to be issued by the department.
'I'm struggling with the fact that I am being asked to enter a preliminary injunction with something that is not mentioned anywhere in the complaint,' Gallagher said.
But Menschel pushed back, arguing that the certification process is a continuation of the letter itself.
'The department is just recycling the letter, in a way, and taking another step toward implementation,' Menschel said.