by Emily Pecot
Imagine being a teacher afraid to discuss the 1960s Civil Rights Movement with your class because your school could lose federal funding. That fear became real for educators across the country in early 2025 when the U.S. Department of Education sent a letter threatening to revoke federal money from any school that kept its diversity, equity, and inclusion (DEI) programs. The letter warned against “illegal DEI practices,” but never explained what that means.
DEI defined
The term “DEI” is not new. According to David Glasgow, a professor at New York University School of Law and co-author of How Equality Wins: A New Vision for an Inclusive America, the field of diversity, equity, and inclusion emerged in the wake of the Civil Rights Act of 1964.
“The work is about ensuring that the promise of equal opportunity embedded in civil rights law is actually made real in people’s day-to-day lives, such as in schools, universities, and workplaces,” says Professor Glasgow, who is also the founding executive director of NYU School of Law’s Meltzer Center for Diversity, Inclusion, and Belonging.
In practice, Professor Glasgow says, DEI covers a wide range of activities that many students encounter without much thought. It includes outreach to attract diverse applicants, disability accommodations, support programs for first-generation college students, and educational initiatives that help students work across their differences. Many programs like after-school clubs, mentoring programs, or campus cultural centers exist because of DEI efforts.
Professor Glasgow also notes that most diversity programs are perfectly legal and would only cross a line if they allocated benefits or burdens based on race.
The letter
On February 14, 2025, the Office for Civil Rights in the U.S. Department of Education (DOE), sent a “Dear Colleague” letter to every school district and college in America. It declared that any consideration of race in admissions, financial aid, hiring, or “all other aspects” of campus life could violate Title VI of the Civil Rights Act of 1964, which prohibits discrimination in federally funded programs.
According to the letter, “American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low-income families.” The letter went further, claiming that schools had “toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.”
The letter referenced as the basis for the department’s legal argument the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions (SFFA) v. Harvard, which ended affirmative action in college admissions. While the letter acknowledged that the Court’s decision focused on college admissions, the DOE’s Office for Civil Rights claimed the case “sets forth a framework for evaluating the use of race by state actors and entities covered by Title VI of the Civil Rights Act of 1964.”
The Department of Education said it was simply communicating existing law.
“The law is clear,” the letter stated. “Treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”
On March 1, 2025, the DOE followed up with a Frequently Asked Questions (FAQ) memo to clarify its earlier letter. In response to a question asking whether teachers were allowed to discuss topics related to race or DEI, the memo talked about creating a racially hostile environment.
“For example, an elementary school that sponsors programming that acts to shame students of a particular race or ethnicity, accuse them of being oppressors in a racial hierarchy, ascribe to them less value as contributors to class discussions because of their race, or deliberately assign them intrinsic guilt based on the actions of their presumed ancestors or relatives in other areas of the world could create a racially hostile environment…,” the memo stated.
In April of 2025, the DOE sent letters to every state commissioner of education requiring them to certify their compliance with the “anti-discrimination obligations” outlined in the “Dear Colleague” letter and the FAQ memo. Failure to comply would result in the loss of federal funding. The DOE controlled approximately $7 billion in previously approved federal education grants.
In a press statement, Craig Trainor, the DOE’s Acting Assistant Secretary said, “Federal finance assistance is a privilege, not a right. When state education commissioners accept federal funds, they agree to abide by federal anti-discrimination requirements. Unfortunately, we have seen too many schools flout or outright violate these obligations, including by using DEI programs to discriminate against one group of Americans to favor another based on identity characteristics in clear violation of Title VI.”
New Jersey, along with 24 other states, as well as the District of Columbia and Puerto Rico, refused to sign the certification.
Temporarily blocked
On April 24, 2025, the day the certification forms were due, three federal district judges in the District of Columbia, Maryland, and New Hampshire temporarily blocked enforcement of the DOE’s directives, responding to lawsuits from, among others, the NAACP, the American Federation of Teachers and the National Education Association. All three judges agreed the directives were vague.
Judge Dabney Friedrich of the U.S. District Court for the District of Columbia, ruled that the directive was “unconstitutionally vague” and that included the certification order, which she said, “further exacerbates vagueness concerns.” Judge Friedrich wrote that the policy failed to “delineate between a lawful DEI practice and an unlawful one.”
In New Hampshire, U.S. District Judge Landya McCafferty also ruled that the directives were vague and that the government was unlawfully targeting speech it disagreed with, calling it “textbook viewpoint discrimination.” In her 82-page opinion, Judge McCafferty wrote, “DEI as a concept is broad; one can imagine a wide range of viewpoints on what values of diversity, equity, and inclusion mean when describing a program or practice. It is no surprise that several courts—including this one—have struck down similar laws as void for vagueness.”
According to the Free Speech Center, when a law or policy is so unclear that ordinary people cannot figure out what it prohibits, it falls under the void-for-vagueness doctrine. That means the government cannot punish someone for breaking a rule it never clearly defined.
In Maryland, U.S. District Judge Stephanie Gallagher cited the federal Administrative Procedure Act in her opinion, ruling that government agencies must adhere to certain requirements, including giving the public a chance to comment before making new policies. Judge Gallagher found that the Department of Education had skipped those required steps entirely. She ruled that the directives were not reminders about existing law, instead representing “a sea change in how the Department of Education regulates educational practices and classroom conduct.”
A final ruling
When Judge Gallagher issued her final ruling in August 2025, she went beyond the procedural violations, finding that the directives also violated the First Amendment by “declaring broad categories of classroom speech discriminatory” and making “credible and specific threats of enforcement relating to classroom speech.” Her ruling asserted that the government caused “millions of educators to reasonably fear that their lawful, and even beneficial, speech might cause them or their schools to be punished.”
Rejecting the DOE’s argument that the 2023 U.S. Supreme Court admissions case—SFFA v. Harvard—found that all racially conscious education programs were illegal, Judge Gallagher wrote that the Supreme Court’s ruling “certainly does not proscribe any particular classroom speech, or relate at all to curricular choices. Nor does Title VI.”
Judge Gallagher concluded, “The government cannot proclaim entire categories of classroom content discriminatory to side-step the bounds of its statutory authority.”
In October 2025, the Trump administration appealed Judge Gallagher’s ruling to the U.S. Court of Appeals for the Fourth Circuit. However, in January 2026, the administration formally dropped the appeal, which means Judge Gallagher’s ruling stands and the Dear Colleague letter, as well as the certification requirement are void and unenforceable nationwide.
Future of DEI
Although the DOE’s ban on DEI programs was halted, many schools and universities preemptively reduced or eliminated their diversity programs. That included canceling mentoring initiatives, removing language on their websites about equity, and letting go of staff who ran inclusion programs.
“The administration used bullying tactics to put pressure on institutions to withdraw from diversity, equity, and inclusion programs even in the absence of legal liability,” Professor Glasgow says. “The goal was to scare people into thinking that more DEI activities are unlawful than is actually the case.”
In an interview with The Guardian, Kenji Yoshino, the co-author of Professor Glasgow’s book who is also a professor at NYU School of Law, said, “A lot of Americans have been kind of deceived into believing that what DEI stands for is a version of race-based affirmative action. But that is only part of DEI, and there are many forms of diversity, equity and inclusion that are completely consistent with the leveling approach, which removes bias from the system, as opposed to the lifting approach, which creates that targeted ramp up to a playing field.”
In the same Guardian interview, Professor Glasgow made the case for DEI as a necessity, pointing out that the U.S. is getting more and more diverse.
“It’s really hard to imagine that your workplace, your organization or your community could achieve any of its missions if it wasn’t able to teach its people to work across differences,” Professor Glasgow said. “That means the skills of diversity and inclusion are here to stay.”
Discussion Questions
- What do you think of the Department of Education’s attempt to ban DEI initiatives in schools?
- Do you agree or disagree with the reasoning of the rulings issued against the Department of Education? Explain your answer.
- Glasgow says that diversity and inclusion are here to stay. Do you agree or disagree with reasons he gives? Explain your answer.
Glossary Words
appeal—a request that a higher court review the decision of a lower court.
nebulous—unclear, vague or ill-defined.
statutory—based on legislative enactment.
This article originally appeared in the spring 2026 edition of Respect, NJSBF’s diversity and inclusion newsletter.