Back in August, I wrote about the administration’s “Dear Colleague” letter warning colleges and universities against “unlawful DEI” programs. At that time, a federal district judge struck down the letter, finding that it violated the Administrative Procedure Act. The administration appealed this decision to the Fourth Circuit Court of Appeals. Now the appeal has been dropped, as the admin appears no longer interested in defending its legality. A memo from Bond, Schoeneck & King discusses the dismissal and highlights the remaining legal risks:
“Institutions should not, however, assume that the absence of the DCL eliminates all legal concerns with respect to DEI programs and policies. As a general matter, DEI is not, per se unlawful. There is – and always has been – a difference between ‘unlawful’ and ‘lawful’ programs that may fall under a ‘Diversity, Equity and Inclusion’ framework. In addition, as a general matter, an entity engages in unlawful discrimination when it makes decisions or extends preferential treatment based on an individual’s race, color, ethnicity, sex or various other protected characteristics. These two concepts have been and continue to remain true.”
The memo notes that many colleges and universities changed their DEI policies in settlements with the federal government. It’s possible the appeal was dropped because the administration already got the compliance it was looking for. The original judgment was also made on procedural grounds, so we won’t get a chance to see how the admin’s substantive arguments hold up in court. Tracking the state of DEI litigation against colleges and universities gives insight into how the admin is approaching enforcement. The arguments made by the Department of Education may arise in litigation against the private sector. We’ll see if dropping the appeal means the admin is changing tack, or if its legal interpretations will reemerge in another form.
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