ED Does Not Appeal Case Challenging Dear Colleague Letter
Maybe we’ve started a trend here, which may be a good thing for grantees! For the second straight week, we are reporting that a federal agency — this time the Department of Education (ED) — has opted not to appeal a case where grantee plantiffs objected to new agency policy under the Trump administration.
In the Fourth Circuit Court of Appeals, ED dismissed its appeal of a lower court’s previous decision pertaining to the agency’s February 2025 Dear Colleague letter addressing nondiscrimination requirements. In that case, the U.S. District Court for the District of Maryland determined the requirements in the letter, as well as a related certification requirement, were unlawful and prohibited the agency from enforcing these requirements.
The ED letter sought reaffirm the nondiscrimination obligations of schools and universities that receive ED financial assistance, calling for educational institutions to stop using racial preferences and stereotypes as factors in their admissions, hirings, promotions, scholarships and other activities. While ED contended that the letter alluded to legal requirements under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the U.S. Constitution and other relevant authorities whereby “students should be assessed according to merit, accomplishment and character — not prejudged by the color of their skin,” opponents argued that the letter extended well beyond existing law to denounce policies designed to enhance” diversity, equity and inclusion (DEI).
On April 25, the U.S. District Court in Maryland, in American Federation of Teachers (AFT), et al., v. Department of Education, et al., issued a temporary stay of enforcement after AFT, American Federation of Teachers–Maryland, American Sociological Association and Eugene, Ore. School District 4J expressed concern that their First Amendment rights were under threat as a result of the letter. In a new summary judgement ruling on Aug. 14, the Maryland court again generally sided with the plaintiffs, ruling that the ED letter and accompanying certification requirement are unlawful and were vacated pursuant to the APA.
Since Trump entered office for a second time, there have been hundreds of federal lawsuits filed against the administration challenging its policies and practices, and recent analysis by Democracy Forward notes that the administration is losing court orders in these cases by large amounts. “Today’s dismissal confirms what the data shows: government attorneys are having an increasingly difficult time defending the lawlessness of the president and his cabinet. And, when people show up and resist, they win. This is a welcome relief and a meaningful win for public education,” said Skye Perryman, president and chief executive officer of Democracy Forward.
We encourage grantees to collaborate and join forces, perhaps through organizations and associations like the American Federation of Teachers, to better stand up to policies that could prove detrimental to their programs. We’ll keep you informed if we hear of other agencies dropping their appeals in these cases.
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