Three federal judges, in Maryland, New Hampshire and Washington, D.C., ruled Thursday that the Trump administration had overstepped when it ordered the nation's schools to stop all diversity, equity and inclusion (DEI) programs as well as classroom teaching the administration might consider discriminatory. For the moment, this means the U.S. Department of Education cannot make good on its threat to punish noncompliant districts by withholding vital federal funding, including dollars that help K-12 schools serve low-income students and children with disabilities.
U.S. District Judge Landya B. McCafferty, an Obama appointee in New Hampshire, began her opinion by noting the importance of safeguarding academic freedom in the U.S. and of exposing students to a multitude of viewpoints.
"In this case, the court reviews action by the executive branch that threatens to erode these foundational principles," McCafferty wrote.
U.S. District Judge Stephanie A. Gallagher, a Trump appointee in Maryland, wrote, "This Court is constitutionally required to closely scrutinize whether the government went about creating and implementing [policies] in the manner the law requires."
"The government did not," she found.
Gallagher issued a temporary stay preventing the Trump administration from enforcing its threat against schools, while McCafferty blocked enforcement in any school that employs a teacher from one of the groups that brought the New Hampshire suit, including the National Education Association, the nation's largest teachers union.
The Education Department did not respond to an NPR request for comment.
The three opinions, in three separate cases, raise similar concerns – and suggest the Trump administration has work to do to convince the courts its anti-DEI efforts are legal.
The administration "does not even define what a 'DEI program' is"
McCafferty, in New Hampshire, faulted the Trump administration for its vagueness.
In her decision, McCafferty criticized a Feb. 14 "Dear Colleague" letter from the U.S. Education Department. The letter argues that schools, in the name of DEI, "have toxically indoctrinated students with the false premise that the United States is built upon 'systemic and structural racism' and advanced discriminatory policies."
But, McCafferty wrote, "The Letter does not even define what a 'DEI program' is."
This vagueness was a common theme among the rulings.
"Although the challenged documents place a particular emphasis on 'certain DEI practices,' they fail to provide an actionable definition of what constitutes 'DEI' or a 'DEI' practice," wrote U.S. District Judge Dabney L. Friedrich in Washington, D.C. Friedrich is also a Trump appointee.
In that case, brought by the NAACP, Friedrich agreed to a preliminary injunction.
In Maryland, Gallagher criticized the administration for filling its "Dear Colleague" letter with broad claims about harmful, discriminatory teaching, but neglecting to include "any factual citations or references to any facts supporting its assertions."
On Feb. 27, that "Dear Colleague" letter was followed by the creation of a department portal through which parents were encouraged to report teaching or policies they consider discriminatory. The official release announcing the portal quotes Tiffany Justice, co-founder of the conservative-leaning Moms for Liberty: "Parents, now is the time that you share the receipts of the betrayal that has happened in our public schools."
And then on April 3, the Education Department went further: requiring K-12 school districts to certify, in writing, that they are in compliance with the department's expanded interpretation of federal anti-discrimination law, or risk losing their federal funding.
Districts are already required to certify their compliance with existing federal law, something Gallagher noted in her ruling.
The administration argues its interpretation is not new – that many DEI policies violate Title VI of the Civil Rights Act of 1964 and that the government's recent anti-DEI efforts are allowable because they're simply enforcing pre-existing federal law.
Gallagher, in Maryland, found that argument "unpersuasive."
"If the ['Dear Colleague' letter] said nothing new," Gallagher wrote, "then why does it link to a new reporting portal specifically looking for instances of 'divisive ideologies' and 'indoctrination,' when there has always been a portal for anyone to report race discrimination or racially hostile environments?"
The lack of clarity "will sow fear and doubt among teachers"
Tying a consequence so severe – the loss of federal funding – to a new and ill-defined set of policies and behaviors could have a chilling effect on schools, McCafferty warned.
As an example, she imagined "an elementary school teacher could seek to establish a class culture of equitable and inclusive treatment by asking her students to sign a collective pledge to follow the 'Golden Rule' for the entire school year. It is more than arguable that such a practice would come within the ocean-wide definition of DEI set forth above."
Or, how should the nation's history teachers approach America's fraught racial past, given the department's contention that talk of "systemic and structural racism" has "toxically indoctrinated" students?
McCafferty noted the story of one NEA-member middle school history teacher in New Hampshire:
"Discussing the … enactment of the Civil Rights Act of 1866 and the Fourteenth and Fifteenth Amendments, the Jim Crow south, the founding of the KKK, and the Tulsa Race Massacre—necessarily entails discussions of race and how race and perceptions toward different racial groups has shaped American history," McCafferty wrote. But "this teacher now fears being accused of engaging in discrimination for doing no more than teaching historical facts."
The threat to schools' federal funding, coupled with the DEI portal for parents to report teachers they believe have crossed the line, "raise the specter of a public 'witch hunt' that will sow fear and doubt among teachers," McCafferty warned.
Can the executive branch influence school curriculum?
Trump and his education secretary, Linda McMahon, have said repeatedly that they want to eliminate the U.S. Department of Education and send education "back to the states." But, in these lawsuits, the administration is accused of doing the opposite: wielding the power of the federal government to tell schools what they can and cannot teach.
Two of Thursday's rulings note that federal law expressly prohibits the U.S. Department of Education from exercising "any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system."
The department has argued its efforts are legal because they are enforcing federal anti-discrimination law, but McCafferty found that argument "insufficient."
"While it may be true that a line must be drawn somewhere between the Department's lawful prerogative to enforce anti-discrimination law and its prohibition from controlling curriculum, the Letter and its associated documents do not toe that line."
As for whether the letter exceeds the Education Department's legal authority, Gallagher wrote, the Trump administration insists it "merely informs schools that they must not discriminate among students when implementing their curricula and must avoid stereotyping and stigmatizing based on race."
Gallagher's skeptical response: "This Court must concern itself with what the Letter actually says, not what the government says the Letter says."
As such, "by declaring broad categories of classroom speech discriminatory," Gallagher wrote, "in the context of a Letter threatening enforcement actions for discriminatory practices, DOE is exercising 'direction, supervision, or control' over 'the curriculum, program of instruction, administration, or personnel of [schools.]'"
In short, the Education Department appears to be doing precisely what federal law says it cannot.
"The government cannot proclaim entire categories of classroom content discriminatory to side-step the bounds of its statutory authority," Gallagher ruled.
The Trump administration is likely to challenge all three rulings.
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