To receive federal education funding, New Jersey and every state education agency must submit to the U.S. Department of Education (USDOE) a statement of assurance that it complies with federal anti-discrimination laws, including Title VI of the Civil Rights Act of 1964 (Title VI).  Title VI prohibits discrimination based on race, color, and national origin by schools receiving federal funds.

On February 14, 2025, Craig Trainor, the Acting Assistant Secretary for Civil Rights in the USDOE[1] issued a “Dear Colleague” letter[2] explaining the Trump administration’s interpretation of Title VI in light of the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.[3] In that case, it was determined that Harvard’s and the University of North Carolina’s race-based admissions programs violated the Equal Protection Clause of the Fourteenth Amendment and thereby also violated Title VI.

The Dear Colleague letter noted that while the Students for Fair Admissions case involved university admissions decisions, the holding could be applied more broadly. It further stated that diversity, equity, and inclusion (DEI) programs that stigmatize students who belong to particular racial groups based on crude stereotypes deny those students the ability to participate fully in school life. It advised that the USDOE would take measures to assess compliance based on the understanding embodied in the letter.

There was an immediate backlash from the education community to the Dear Colleague letter for two major reasons: the notion that the holding could be applied beyond college admissions, and the threat to funding for K-12 public schools whose curricula or programs touch on or incorporate race and diversity. As a result, many organizations filed suit against the USDOE to enjoin enforcement of the Dear Colleague letter, including the National Education Association (NEA),[4]   the American Federation of Teachers (AFT),[5] and the National Association for the Advancement of Colored People (NAACP).[6]

On February 27, 2025, the USDOE created a website called the “End DEI” portal. The website allows parents, students, teachers, and others to submit reports of perceived discrimination based on race or sex in public schools, which the USDOE would investigate.[7] 

On February 28, 2025, the USDOE issued a document entitled “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act”[8] (FAQ Guidance). The FAQ Guidance addressed, among other things, whether DEI programs were unlawful based on the Students for Fair Admissions case. 

On April 3, 2025, USDOE sent letters to state commissioners of education requiring them to certify their compliance with federal antidiscrimination laws in order to continue to receive federal financial assistance.[9] In particular, the USDOE requested each state certify compliance with Title VI and the decision in Students for Fair Admissions. States were initially given ten days to comply, but the deadline was extended until April 24, 2025.

By letter dated April 17, 2025, New Jersey Commissioner of Education, Kevin Dehmer, wrote to the USDOE and advised that the New Jersey Department of Education (NJDOE) had already certified its compliance with Title VI.[10]  NJDOE simultaneously notified the educational community about the Commissioner’s response and advised that local districts were not obligated to complete the USDOE’s certification form.[11]

On April 25, 2025, New Jersey joined eighteen other states in a lawsuit filed against the USDOE in the U.S. District Court for the District of Massachusetts.[12] The nine-count complaint requests injunctive and declaratory relief against the USDOE’s certification requirements.[13] The complaint alleges that the USDOE’s new interpretation of Title VI is vague, burdensome, and contrary to law. The complaint alleges that: (1) the USDOE’s actions violate the Administrative Procedure Act (APA) because the required notice-and-comment rulemaking procedures were not followed; (2) the USDOE exceeded its statutory authority by imposing new conditions on federal funding without congressional approval; and (3) the USDOE’s actions violate the separation of powers and the Spending Clause of the U.S. Constitution.

On April 24, 2024, just one day before the filing of the lawsuit that New Jersey joined, there were three consequential legal rulings—one in each of the cases filed by the NEA, AFT, and NAACP.  First, the Honorable Landya McCafferty, U.S. District Judge for the District of New Hampshire, issued an 82-page opinion granting the NEA’s request to enjoin the enforcement of the Dear Colleague letter.[14] The NEA plaintiffs had alleged that the Dear Colleague letter violated their due process rights under the Fifth Amendment and their free speech rights under the First Amendment. They also asserted that the letter exceeded the USDOE’s statutory authority and was issued without notice and public comment in violation of the APA. 

Judge McCafferty found that the Dear Colleague letter likely violated the Fifth Amendment because it failed to provide clear notice of prohibited conduct. She found that the letter likely violated the First Amendment because it targets speech based on viewpoint, particularly by prohibiting the teaching of concepts such as systemic or structural racism. Lastly, she found that the letter likely violated the APA because it was issued without following the required procedures. In light of these findings, Judge McCafferty issued a preliminary injunction against the USDOE from enforcing the Dear Colleague letter, the FAQ Guidance, the End DEI Portal, and the April 3rd certification requirement against the NEA plaintiffs, against any entity that employs members of the plaintiff organizations.

Second, in the case brought by the AFT, the AFT plaintiffs alleged that the Dear Colleague letter violated their free speech rights under the First Amendment and their due process rights under the Fifth Amendment. The AFT alleged that the letter was void for vagueness, penalized speech based on content and viewpoint, and exceeded the USDOE’s statutory authority. The AFT also alleged that the letter violated the APA because it was issued without notice and public comment.

The Honorable Stephanie A. Gallagher, United States District Judge for the District of Maryland, determined that the AFT plaintiffs demonstrated that they were likely to succeed on their APA claim because the Dear Colleague letter was a final agency action that did not go through the notice and comment process.[15] Judge Gallagher determined that the USDOE likely exceeded its statutory authority by exercising control over the school curriculum content. She determined that the Dear Colleague letter was arbitrary and capricious because the USDOE changed its position regarding its authority to regulate curriculum and to prospectively categorize content as discriminatory.  She also opined that the letter likely violates the First Amendment to the extent that it regulates specific forms of speech of a particular viewpoint by declaring them discriminatory.  As a result, Judge Gallagher issued a preliminary injunction staying the effective date of the Dear Colleague letter pending a final decision on the merits, but denied the request to enjoin the FAQ Guidance and the End DEI portal.

Lastly, in the case brought by the NAACP, the NAACP, in an eight-count complaint, raised claims similar to those asserted by the NEA and AFT. The Honorable Dabney L. Friedrich, United States District Judge for the District of Columbia, found that the NAACP had only demonstrated a likelihood of success on the merits of its Fifth Amendment void-for-vagueness claim regarding the certification. This was sufficient, however, for Judge Friedrich to issue a preliminary injunction to temporarily enjoin the USDOE from enforcing the new certification requirement. [16]

In response to Judge Friedrich’s decision, on April 28, 2025, the USDOE sent an email to the education community stating as follows:

On Thursday, April 24, 2025, the U.S. District Court for the District of Columbia enjoined the U.S. Department of Education from implementing and enforcing its April 3, 2025, Title VI Certification Letter. A copy of that Court Order is attached here. As a result, the Department will take no further action concerning the Title VI Certification Letter unless and until further notice is provided.

Please be advised that the Court Order does not preclude the U.S. Department of Education from initiating any enforcement actions that it may otherwise pursue under Title VI of the Civil Rights Act and its implementing regulations.
(Emphasis added).

In light of this email from the USDOE, the Trump administration’s “war on DEI” in public schools using the Dear Colleague letter’s interpretation of Title VI remains on hold. The State of New Jersey’s lawsuit against the USDOE, along with those filed by the NEA, AFT, and NAACP, will have to be litigated, and the merits will have to be decided before a final decision. Of course, in the event of an adverse decision, it is likely that each case will eventually be appealed to the Supreme Court. In the interim, school officials should work closely with board counsel in the event of an investigation by the USDOE into complaints alleging discrimination in violation of Title VI.