On Feb. 21, 2025, the federal district court for the District of Maryland issued a preliminary injunction partially enjoining two of President Trump’s executive orders: Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025)(J20 Order) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025)(J21 Order).

The Court’s ruling focused on three provisions of the executive orders:

• The “Termination Provision” of the J20 Order directing federal agencies to terminate “equity-related” grants and contracts;
• The “Certification Provision” of the J21 Order directing federal agencies to require federal contractors and grantees to certify under penalty of the False Claims Act that they do not operate programs promoting DEI that violate discrimination laws; and
• The “Enforcement Threat Provision” of the J21 Order directing the Attorney General to take actions to “deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” including drafting a report recommending actions and identifying corporations, higher education institutions or certain other entities for “civil compliance investigations.”

The plaintiffs in the case are the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore. The Court ruled that the plaintiffs had demonstrated a likelihood of prevailing on their claims that the J20 and J21 executive orders suffered from an unconstitutional vagueness and that they abridge freedom of speech, among other infirmities. The Court also found that the plaintiffs had demonstrated that the plaintiffs would be irreparably harmed if the executive orders were to be implemented while further judicial proceedings are held to ultimately determine the legality of the executive orders. The Court went on to find that a nationwide injunction was appropriate.

Therefore, the Court issued a preliminary injunction preventing federal agencies from:

• Freezing, terminating or changing the terms of any existing grants or contracts, on the basis of the Termination Provision in the J20 Order;
• Requiring any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; and
• Bringing any “False Claims Act enforcement action, or other enforcement action,” pursuant to the Enforcement Threat Provision.

Notably, the scope of the injunction issued by the Court was not as all-encompassing as the plaintiffs had requested. The Court expressly declined to enjoin the Attorney General from preparing a report of recommendations on strategic steps to “encourage the private sector to end illegal discrimination and preferences, including DEI” or from engaging in investigations of potential violations federal anti-discrimination laws pursuant to the Enforcement Threat Provision.

As a result of the Court’s ruling, there is less immediate concern that federal grants or contracts will be interrupted on the basis that they fund “equity-related” activities or that a grantee or contractor will be subject to the threat of the False Claims Act for engaging in DEI programs or policies. On its face, the scope of the Court’s ruling is quite broad, as it prevents not only False Claims Act actions but also “any other enforcement action.”

The ruling is not a final ruling and could be reversed on appeal or altered by the court itself, in whole or in part, as the matter proceeds. Thus, issues raised by the J20 and J21 executive orders are worth reviewing, although some of the immediacy is removed at this time.

In addition, one should not assume that the Court’s injunction addresses all legal concerns with respect to DEI programs and policies currently in place. As a general matter, an entity engages in unlawful discrimination when it makes decisions based on an individual’s race, color, ethnicity, sex or various other protected characteristics. Despite the Court’s preliminary injunction, there remains the risk of liability based on illegal discrimination, even if the illegal discrimination resulted from well-intentioned efforts to increase diversity. Stated another way, some programs and policies may have had compliance issues before the J20 and J21 executive orders and those issues are not affected by the preliminary injunction and should be assessed and addressed if warranted. Additionally, there remains uncertainty about the interplay between the issued injunction with the Feb. 14, 2025 Dear Colleague Letter (DCL) from the Department of Education. While the DCL is largely based on principles that are articulated in the now hobbled J20 and J21 executive orders, it is not clear that the Court’s injunction extends to all aspects of the recent DCL.

As before this latest development, DEI programs, policies and initiatives should be reviewed to ensure their compliance with existing anti-discrimination law. Close attention should also be paid to the rapidly occurring developments against the backdrop of enforcement actions by both federal and state officials, funding and reimbursement implications of the programs and the possibility of private litigation.

Bond continues to follow these and related developments closely. Please contact a Bond attorney in the higher education practice or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation.

On Jan. 21, 2025, President Trump signed an Executive Order (EO), “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Broadly speaking, the EO purported to prohibit what it characterized as unlawful “Diversity, Equity and Inclusion” programs (a term it did not explicitly define). Among other things, the EO encouraged enforcement action against organizations or institutions sponsoring such programs, and directed the Attorney General and the Secretary of Education to issue guidance to institutions of higher education that receive federal grants or participate in Title IV FSA programs regarding measures and practices required to comply with the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA).

On Feb. 14, 2025, some initial guidance was issued, in the form of a Dear Colleague Letter (DCL) from the federal Department of Education, Office for Civil Rights. The February 14 DCL provides a statement of the position of the Department of Education (Department) on the “nondiscrimination obligations of schools and other entities that receive federal financial assistance from the Department.” The DCL “explains and reiterates” the Department’s view of “existing legal requirements under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities.”

The DCL states that discrimination on the basis of race, color and national origin has been and will continue to be illegal. The DCL discusses the Supreme Court’s decision in SFFA and states that, although the decision addressed college admissions, the holding of SFFA applies more broadly, “If an educational institution treats a person of one race differently than another person because of that person’s race, the educational institution violates the law.”

The DCL expands upon the Department’s view of this principle:

Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

The DCL takes a position on several issues that may have been features of some post-SFFA DEI programs. For example, the DCL states that a “school may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students.” This statement references the SFFA decision which states that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” In this regard, the use of these items in ways that do not predict an applicant’s race or favor or disfavor an applicant based on race does not appear to violate the Department’s interpretation of SFFA.

The DCL also states that “relying on non-racial information as a proxy for race and making decisions based on that information, violates the law.” Again, the facts would seem to matter greatly here as to what is a proxy for protected characteristics versus what criteria are lawful.

The DCL states that “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” Elimination of criteria not tied to race – for instance, not using standardized tests post-pandemic after proceeding without them during the pandemic years – should remain permissible under the DCL unless tied to achieving certain demographic results.

The DCL also calls into question DEI program features that:

[P]reference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.

The DCL concludes with the following summary of the Department’s position:

The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.

All educational institutions are advised to: (1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race. Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.

The DCL requires immediate analysis by educational institutions. The first area noted in the advice section – ensuring that polices comply with the existing civil rights laws – should be undertaken if such an analysis has not been conducted recently. The SFFA decision, the Trump Administration executive orders, and this DCL letter should all be considered and taken into account in that analysis. The second area noted – use of proxies for race – is simple to state but more nuanced and complicated to analyze, as the law has shifted for higher education institutions based on Supreme Court interpretations and institutional approaches and rationales have also likely shifted over time. The third area – use of third parties – is less clear as to scope and the Department’s interpretation, and its impact on current practices. This will require a case-by-case assessment of the program features and their history and usage, as well as consideration of the DCL’s positions and the underlying law.

We anticipate that some of the interpretations of current law as set forth in this DCL may be subject to legal challenge. This DCL arrives in the same week that several states’ Attorneys General asserted a different interpretation of what is permitted by federal law than that articulated in the Executive Order underlying the DCL. Given the flurry of activity, we recommend prompt consultation with legal counsel to assess the impact of these developments on your institution.

Bond attorneys are following these, and related legal developments, closely. If your institution would like further guidance, please reach out to an attorney in our higher education practice or the Bond attorney with whom you are regularly in contact.

On Feb. 5, 2025, President Trump signed an Executive Order, “Keeping Men Out of Women’s Sports.”  The Executive Order states that “[i]n recent years, many educational institutions and athletic associations have allowed men to compete in women’s sports,” a situation that the Order states has denied women and girls equal athletic opportunity.

The Executive Order states:

“Therefore, it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy. It shall also be the policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.”

This Executive Order follows another order signed by the President on Jan. 20, 2025, “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government,” which sets more broadly the federal government’s position that there are two immutable biological binary sexes, male and female, and that the Executive Branch will enforce all sex-protective laws accordingly.

Effective Feb. 5, 2025, the Executive Order directs the Secretary of Education to:

• Enforce Title IX of the Education Amendments of 1972 to “affirmatively protect all-female athletic opportunities and all-female locker rooms,” including through regulations and policy guidance; and
• Prioritize Title IX enforcement actions against educational institutions and athletic institutions composed of or governed by educational institutions that deny women an equal opportunity to participate in athletics by “requiring them, in the women’s category, to compete with or against or to appear unclothed before males.”

The Executive Order also directs all executive departments and agencies to review grants and educational programs and “where appropriate” to “rescind funding to programs that fail to comply with the policy established in this order.”

The Executive Order may be challenging for educational institutions, particularly those with transgender female students currently participating on girls and women’s teams. Additionally, in jurisdictions with state or local laws, including the State of New York, that extend rights based on gender identity, the Executive Order conditions federal funding on actions that may be inconsistent with state and local laws. College and university leadership should consult with legal counsel about the impact of this Executive Order on their athletic programs.

Bond attorneys are following these, and related legal developments, closely. If your institution would like further guidance, please reach out to an attorney in our higher education practice or the Bond attorney with whom you are regularly in contact.

This week, Gov. Kathy Hochul signed the Student Lifeline Act amending the New York Education Law to require that degree-granting higher education institutions educate students, faculty and staff about New York’s 9-8-8 Suicide and Crisis Lifeline.

Read More >> New York Requires 9-8-8 Suicide and Crisis Lifeline Information Shared and Added to College Student ID Card

A federal judge in Texas has issued a nation-wide injunction blocking the Education Department’s new minimum clock-hour rule (Proposed Rule) for career prep programs, which was scheduled to go into effect on July 1, 2024.

Read More >> Federal Judge Blocks Education Department’s New Minimum Clock-Hour Rule

Recent resolution agreements between the U.S. Department of Education’s Office for Civil Rights (OCR) and the University of Michigan (U-M) and the City University of New York (CUNY) offer valuable lessons for colleges and universities nationwide. These agreements, addressing complaints of discrimination based on shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry and/or the association with these national origins/ancestries, reflect OCR’s evolving standards for compliance with Title VI of the Civil Rights Act of 1964. Higher education institutions should heed these lessons to avoid and/or neutralize regulatory scrutiny.

Read More >> OCR Resolves Title VI Complaints Against Two High-Profile Universities

On May 30, the U.S. District Court for the Southern District of New York granted New York University’s (NYU) motion to dismiss in a lawsuit[1] from a first-year law student claiming that NYU School of Law’s process for selecting students to serve as editors of its Law Review gives preference to women and minorities in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The complaint was dismissed without prejudice on two grounds: 1) lack of subject-matter jurisdiction; and 2) failure to state a claim. This lawsuit is the first legal challenge to a law review diversity policy following the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), which struck down race-based admission processes at colleges and universities.

Factual Background

The complaint filed in October 2023 notes that prior to the Supreme Court’s decision in SFFA, the NYU Law Review would invite 50 students from the rising second-year class to join the academic journal as editors. Twelve of the 50 spots were filled by the Law Review’s Diversity Committee, which required applicants to submit personal statements and gave them the option to submit resumes. The Diversity Committee selected students in consideration of factors that included (but were not limited to) the applicant’s “race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age.”

According to the plaintiff, a student identified as “John Doe,” NYU Law Review changed its website after the SFFA decision by removing any explicit reference to diversity in the membership-selection process, but it is clear “that ‘diversity’ remains a prime consideration in the selection of members.” Doe alleges that the Law Review currently requires applicants to submit a “statement of interest” for consideration by the academic journal’s Selection Committee and gives students the option to also submit a resume.

Doe claims that as a heterosexual white male, the application process will subject him to race and sex discrimination and deny him “an equal opportunity to compete for membership” when he applies for Law Review in the summer of 2024. Specifically, Doe asserts that the Law Review uses statements of interest and resumes to “give preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members.”

The Court’s Reasoning

First, U.S. District Judge Vernon S. Broderick determined that Doe lacked the necessary standing to bring his lawsuit. The court explained that Doe’s allegations concerning what information students may share with the Law Review in their applications or how that information may be used are speculative and cannot confer standing upon Doe. The court further stated that the complaint is “devoid of any factual support” for Doe’s arguments, as it “does not plead, in other than a conclusory way, how the Law Review is discriminating now or will discriminate in the future.” Doe’s failure to plead factual allegations of a discriminatory selection process implemented by the Law Review established no injury-in-fact, and therefore no basis for standing or the court’s exercise of subject-matter jurisdiction over the case.

Even if Doe had standing to bring his suit, the court held that the complaint would still be dismissed for failure to state a claim under Title VI and Title IX because Doe’s claim lacked “facts supporting his allegation that NYU is giving and intends to give preferential treatment to certain minority groups.” The court added that the Law Review’s commitment to diversity pre-SFFA, and even post-SFFA, is not unlawful:

"Considering the lack of any language in the selection policy demonstrating a preference for students of a protected class and the absence of any allegations supporting the inference that the selection policy would result in preferential treatment of such students, I cannot conclude that the Law Review’s continued commitment to diversity gives rise to a plausible inference of unlawful conduct."

In effect, this SDNY opinion reinforces the holding in the Supreme Court’s decision in SFFA to expressly acknowledge that universities may consider an individual’s lived experiences or socio-economic challenges in its admission processes, as long as it does not do so based on race or any other protected characteristic alone.

As of the date of this memo, it is unclear whether this case will be appealed to a higher court. Bond will continue to closely monitor this and related affirmative action cases for updates and bring them to you in a timely manner.

If you have any questions about the implications this case may have for your institution, please contact any attorney in Bond’s higher education practice or the attorney at the firm with whom you are in regular contact.

*Special thanks to Associate Trainee Camisha Parkins for her assistance in the preparation of this memo. Camisha is not yet admitted to practice law.

[1] John Doe v. New York University, 1:23CV10515-VSB-SN (S.D.N.Y. 2023).

We previously reported here that institutions of higher education (IHE) located in New York State are required to submit a copy of all written rules and procedures necessary to demonstrate compliance with Article 129-A and Article 129-B of the New York State Education Law to the New York State Education Department (NYSED or Department) for review. As promised, NYSED has provided more detailed information on how to submit these materials. All materials must be submitted by July 1, 2024.

Read More >> New Submission Details for Articles 129-A and 129-B Decennial Reporting

In the midst of antiwar protests and a rise in antisemitic incidents at institutions of higher education (IHE) across the country, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) on May 7, 2024 reiterating its commitment to enforcing Title VI of the Civil Rights Act of 1964.

Read More >> Navigating Compliance with OCR’s New Guidance on Title VI

After an extensive period of public commentary and deliberation, the U.S. Department of Education (ED) announced significant updates to its Title IX regulations on April 18, 2023. The changes are largely designed to overhaul how institutions of higher education (IHE) consider and address cases of sexual harassment, sexual assault, LGBTQI+ discrimination, and other forms of sex-based mistreatment, with the goal of ensuring gender equity in education.

Read More >> Here We Go: ED Releases Reworked Title IX Regulations

In a decision affecting the ever-shifting legal and regulatory dynamics of Borrower Defense to Repayment (BDR) claims, the Fifth Circuit postponed the effective date of a Biden administration plan to expand student debt relief to more borrowers who claim they were misled by institutions of higher education (IHE).

Read More >> The Fifth Circuit Extends Injunction of the Biden Administration’s Borrower Defense to Repayment Rules

The U.S. Department of Education’s recent Financial Value Transparency and Gainful Employment (FVT/GE) rules reflect an attempt to focus the federal regulatory apparatus on financial accountability and transparency. Slated for implementation on July 1, 2024, these regulations aim to enhance the informational paradigm available to students and their families regarding the financial aspects and potential outcomes of educational programs. This initiative, announced on October 10, 2023, signifies a comprehensive effort to enhance decision-making processes and protect the financial interests of both students and the U.S. fisc that underwrites the student financial aid system.

Read More >> Financial Value Transparency and Gainful Employment Regulations: What We Know Now