Dive Brief:
- The American Federation of Teachers on Tuesday sued the U.S. Education Department over its recent guidance barring federally funded colleges and K-12 schools from considering race in their programs and policies or undertaking diversity, equity and inclusion efforts.
- The union asserts that the agency's guidance is vague, overly broad, "radically upends" current law, and forces colleges to either chill free speech or risk prosecution and the loss of funds. AFT and the other plaintiffs — its Maryland chapter and the American Sociological Association — asked a federal judge to declare the guidance unconstitutional and block the Education Department from enforcing it.
- The Feb. 14 letter from the department’s Office for Civil Rights did not define DEI but did list instances where it said race could not be a factor, including scholarships, housing and graduation celebrations. The letter threatens colleges with the loss of their federal funding if they don’t comply by the end of the month.
Dive Insight:
In its four-page letter, the Education Department interpreted the 2023 U.S. Supreme Court ruling against race-conscious college admissions practices as prohibiting educational institutions from considering race in any aspect of education.
But the department's guidance goes "well beyond" the Supreme Court's ruling, according to AFT's lawsuit, "both in terms of the activities that the Letter prohibits and the settings to which it applies."
An Education Department spokesperson said Wednesday the agency does not comment on pending litigation. The department's letter gave federally funded institutions roughly two weeks to comply, setting off a flurry of chaos and confusion among educators.
AFT, which represents some 400,000 higher education workers, said the department's letter appears to label "a wide variety of core instruction, activities, and programs" used by colleges, K-12 schools and pre-K institutions as illegal discrimination.
The lawsuit alleges the letter is unconstitutionally vague and contradicts the law, violating the First Amendment’s free speech guarantee and the Fifth Amendment’s due process protections.
For example, the guidance is "so vague in what it purports to prohibit" that it makes it impossible for education workers to know how to comply, the lawsuit said. It also alleges that the department's guidance is "so standardless that it authorizes or encourages seriously discriminatory enforcement."
"Plaintiffs are left to guess whether their conduct, expression, association will lead to termination of federal funds for the educational institutions in which they work," the lawsuit said. "Plaintiffs’ members will be forced to decide whether to comply with their licensure and professional requirements or jeopardize their institution’s federal funding."
According to the lawsuit, some of the programs and activities the letter appears to ban include:
- Instruction on history and other subjects that recognizes “systemic and structural racism."
- Student organizations open to all but based on protected characteristics, such as an Irish-American Heritage Organization.
- Voluntary graduation ceremonies held by such student organizations to recognize their members.
- College cultural centers.
- Heritage-based Greek life, such as The Divine Nine, a group of historically Black fraternities and sororities.
- "Optional housing based on student groups,” such as a Jewish Cultural House.
- A panel where alumni discuss the hurdles Black students might face in college.
- A training for how instructors can fight antisemitism.
- A workshop explaining the negative impacts of racial slurs.
The lawsuit also said the department's guidance appeared to classify Equity Assistance Centers — resource hubs established in 1964 to promote equitable education for all students — as violations of Title VI of the Civil Rights Act, despite being directly authorized by another part of that law.
"If taken at face value, the vague language seems to even ban distributing materials previously provided by OCR or by other parts of the federal government that explicitly acknowledge racial groups or recognize targeted discrimination, because such materials are 'race conscious,'" the lawsuit said.
Randi Weingarten, president of AFT, said Tuesday that federal law prevents the U.S. president from dictating what colleges and K-12 schools teach.
But the department's guidance, she said, would ban meaningful instruction on topics integral to U.S. history, including slavery, “the forced relocation of Native American tribes," the Jim Crow era, and the internment of Japanese Americans during World War II.
“This vague and clearly unconstitutional memo is a grave attack on students, our profession and knowledge itself," Weingarten said in a statement. "It would upend campus life."
