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  • Date:

    EducationCounsel Alert on DOJ “DEI” Programs, ESSA Waivers, and the Bipartisan FY26 Education Funding Bill (Aug. 6, 2025)

    EducationCounsel published a comprehensive review of recent updates on (i) the Department of Justice issuing guidance on DEI programs; (ii) efforts by the Department of Education to invite states to apply for broad Every Student Succeeds Act (ESSA) waivers; and (iii) the Senate Appropriations Committee voted to approve the Bipartisan FY26 Education Funding Bill.

    Topics:

    Admissions | Athletics & Sports | Compliance & Risk Management | Compliance Programs, Policies & Procedures | Discrimination, Accommodation, & Diversity | Diversity in Employment | Faculty & Staff | Gender Equity in Athletics | Gender Identity & Sexual Orientation Discrimination | Race and National Origin Discrimination | Sex Discrimination | Students

  • Date:

    Department of Justice Memorandum for Federal Funding Recipients Regarding Unlawful Discrimination (Jul. 30, 2025)

    The Department of Justice (“DOJ” or the Department) released new guidance clarifying that entities receiving federal funding must comply with federal antidiscrimination laws, regardless of whether their policies are labeled as Diversity, Equity, and Inclusion (DEI) initiatives. The guidance emphasized that using protected characteristics such as race, sex, religion, or national origin to provide advantages or impose disadvantages are generally prohibited. The guidance provides a detailed, non-exhaustive list of policies and practices the DOJ considers unlawful. These include programs that grant preferential treatment based on protected characteristics, such as scholarships or internships reserved for a specific racial group based on “geographic targeting,” hiring or promotion practices that prioritize “underrepresented” candidates, and segregated facilities or resources. The guidance also targets facially neutral policies that function as proxies for protected characteristics; such, requiring job applicants to demonstrate “cultural competence, “lived experience,” or submit “diversity statements” in ways that advantage individuals based on race or sex. Similarly, recruitment efforts that target specific geographic areas or institutions for their demographic makeup are flagged as potentially unlawful. While the guidance generally prohibited sex-based separation, it includes a notable exception for sex-separated athletic competitions and intimate spaces, warning that allowing males, “including those self-identifying as women”, to access female-only restrooms, locker rooms, or teams may violate Title IX and create a hostile environment under Title VII. The guidance also criticized the use of protected characteristics in selection processes, such as “diverse slate” hiring mandates, contract awards based on race or sex, and program participation quotas tied to demographic categories. The Department also prohibits trainings that stereotype, exclude, or penalize participants based on protected traits; for instance, programs that frame “white privilege” or “toxic masculinity” as inherent characteristics are unlawful. The DOJ concludes by offering a set of recommended best practices aimed at minimizing legal risk: using neutral, merit-based selection criteria, avoiding demographic quotas, documenting legitimate rationales behind institutional decision making, analyzing facially neutral criteria for discriminatory effects, and using nondiscrimination clauses in contracts with third parties. The guidance further affirmed that individuals who refuse to participate in or object to potentially discriminatory programs are protected from retaliation. The DOJ urged all federal funding recipients to review and revise any discriminatory policies to avoid legal liability and loss of funding. 

    Topics:

    Admissions | Athletics & Sports | Compliance & Risk Management | Compliance Programs, Policies & Procedures | Discrimination, Accommodation, & Diversity | Diversity in Employment | Faculty & Staff | Gender Equity in Athletics | Gender Identity & Sexual Orientation Discrimination | Race and National Origin Discrimination | Sex Discrimination | Students

  • Date:

    Department of Education Title VI Investigation into Duke University Law Journal (Jul. 28, 2025)

    The Department of Education’s (the Department) Office for Civil Rights (OCR) launched an investigation into Duke University (the University) and the Duke Law Journal (the Journal) for allegedly violating Title VI by considering race, color, or national origin in the Journal’s editor selection process. The investigation follows reports that the University’s Law Journal circulated a supplemental grading rubric to affinity groups, awarding extra points to applicants who referenced underrepresented racial or ethnic backgrounds in their personal statements. At the same time, Secretary Linda McMahon and Secretary of Health and Human Services Robert F. Kennedy Jr. issued a joint letter to the University demanding a review and overhaul of any race-based practices in hiring, admissions, scholarships, including at Duke Health. The letter calls for the creation of a “Merit and Civil Rights Committee” empowered by the University’s Board of Trustees to implement and enforce reforms in cooperation with the federal government.  

    Topics:

    Discrimination, Accommodation, & Diversity | Diversity in Employment | External Investigations | Faculty & Staff | Investigations | Race and National Origin Discrimination | Student Organizations | Students

  • Date:

    Department of Justice Title VII Investigation into George Mason University Over Faculty Resolution in Support of President Gregory Washington (Jul. 25, 2025)

    The Department of Justice (“DOJ” or the Department) expanded an ongoing investigation into George Mason University (the University) by reviewing a Faculty Senate resolution that praised the University’s President Gregory Washington’s efforts to align faculty and staff demographics with the student body. The DOJ expressed concern that the resolution suggests unlawful “race- or sex-motivated hiring decisions” in violation of Title VII. The Department’s letter requested copies of “the Faculty Senate resolution, any proposed drafts of that resolution, and all written communications . . . between any Faculty Senate members or between Faculty Senate members and President Washington or any members of his Office’s staff.” The letter stated its intent to submit a more detailed information request next week. This action marks the fifth federal probe into the University within the past few weeks. 

    Topics:

    Discrimination, Accommodation, & Diversity | Diversity in Employment | External Investigations | Faculty & Staff | Investigations | Race and National Origin Discrimination

  • Date:

    State Department Investigation into Harvard’s Eligibility to Sponsor International Students and Researchers (Jul. 23, 2025)

    The State Department (the Department) launched an investigation into Harvard University’s compliance with the Exchange Visitor Program, seeking to verify that the University is fully adhering to visa regulations and aligning its programs with U.S. foreign policy and national security objectives. Although the Department did not specify any alleged violations, the investigation aims to ensure that the University’s sponsorship activities do not conflict with national interests. The University was given one week to provide records related to visa sponsorships. 

    Topics:

    Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | External Investigations | Faculty & Staff | Immigration | International Students | Investigations

  • Date:

    Department of Education Investigates Five Universities Over Alleged Scholarships for Undocumented Students (Jul. 23, 2025)

    The U.S. Department of Education’s Office for Civil Rights (OCR) has opened investigations into five universities—University of Louisville, University of Nebraska Omaha, University of Miami, University of Michigan, and Western Michigan University—for allegedly offering scholarships limited to DACA or “undocumented” students in violation of the Title VI prohibition against national origin discrimination. The investigations follow complaints filed by the Legal Insurrection Foundation’s Equal Protection Project, which alleged that such scholarships unlawfully exclude U.S.-born citizens and lawful residents. OCR is also reviewing additional scholarships at the same institutions that allegedly exclude students based on race, color, or other protected characteristics. 

    Topics:

    Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | External Investigations | Faculty & Staff | Immigration | International Students | Investigations

  • Date:

    Black Emergency Response Team v. Drummond (Okla. Sup. Ct. Jun 17, 2025) (unpub.)

    Order Responding to Certified Questions. Petitioners, a coalition of civil rights organizations and university affiliates, challenged 71 O.S. § 24-157, enacted through Oklahoma House Bill 1775, which “prohibits mandatory gender and sexual diversity training . . . [i]n relation to public colleges or universities, the law states: No enrolled student of an institution of higher education within The Oklahoma State System of Higher Education shall be required to engage in any form of mandatory gender or sexual diversity training or counseling; provided, voluntary counseling shall not be prohibited. Any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex shall be prohibited.” Petitioners argued that the law violated the First and Fourteenth Amendments by restricting classroom speech and access to ideas related to race and gender. The district court, after issuing a preliminary injunction enjoining enforcement of key portions of the statute on vagueness grounds, certified six questions of state law to the Oklahoma Supreme Court. The court responded to the first three questions: (1) whether the Oklahoma law overstepped the Legislature’s authority to control the internal operations of public universities; (2) defining the term “requirement” in the context of the ban on mandatory content involving race or sex stereotyping; and (3) defining the term “present” as it relates to teaching on race or sex stereotyping and whether it includes all references, discussions or portrayals. The court stated “[w]e answer the first three certified questions by determining that the term ‘requirement’ in § 24-157(A)(1) pertains only to orientation requirements and does not apply to classes, courses, or curricular speech.” After the court concluded that the narrowed scope of the definition does not implicate curricular speech and thus does not infringe upon principles of academic freedom, the court stated that it “has no reason to answer the remaining certified questions” and determined that plaintiffs lacked standing to challenge the law. The court declined to answer the remaining certified questions related to § 24-157(B)(1), finding that interpretation of those provisions would not avoid the federal constitutional issues raised and would risk rendering an advisory opinion. The court also made note that the federal questions raised could be impacted or rendered moot by Executive order 14190 “Ending Radical Indoctrination in K-12 Schooling” and declined to make that determination.  

    Topics:

    Academic Freedom & Employee Speech | Constitutional Issues | Faculty & Staff | First Amendment & Free Speech

  • Date:

    Department of Justice Title VII Investigation into George Mason University’s Hiring Practices (Jul. 17, 2025)

    The Department of Justice (the Department) opened an investigation into George Mason University (the University) to assess whether its faculty hiring and promotion practices violate Title VII. The Department is investigating whether race and sex have been “motivating factors” in hiring decisions, citing internal communications from the University’s President that date back to 2020-2022 in which he promoted diversity in hiring and expressed institutional commitments to racial equity. The president addressed the investigation in a letter to the University community, stating that his past comments came as responses to the national reckoning on racial justice that followed the murder of George Floyd, and further articulated that at the time of his statements, the University was operating under the “One Virginia Plan”—an initiative, which remains in effect through the end of 2025, that required all state agencies to develop strategic plans to promote inclusivity in hiring, compensation, and operations.  

    Topics:

    Discrimination, Accommodation, & Diversity | Diversity in Employment | External Investigations | Faculty & Staff | Investigations | Race and National Origin Discrimination

  • Date:

    CASA v. Trump (D. Md. July 16, 2025)

    Memorandum Opinion issuing an Indicative Ruling and Holding the Motion in Abeyance. Respondents—individuals, organizations, and states consolidated from Trump v. State of Washington, Trump v. State of New Jersey, and Trump v. CASA, Inc.—originally filed suit to challenge the validity of President Trump’s Executive Order (E.O.) 14160, titled “Protecting the Meaning and Value of American Citizenship”, which aimed to deny birthright citizenship to children born in the U.S. to undocumented immigrants. Following the Supreme Court’s most recent decision in CASA, which narrowed federal courts’ authority to issue universal injunctions, plaintiffs amended their complaint to proceed as a class action and sought class-wide relief. However, the court concluded that it lacks jurisdiction to rule on the motion because the underlying preliminary injunction is currently on appeal before the Fourth Circuit. Citing longstanding jurisdictional principles, the court found that ruling on a second, virtually identical preliminary injunction would intrude on issues now pending before the appellate court. Citing Rule 62.1(a)(3), the court issued an indicative ruling: if the Fourth Circuit were to remand the case for the limited purpose of considering the class-wide motion, the Court would grant it. It bases this conclusion on the same constitutional grounds set forth in its earlier opinion enjoining the Executive Order, and in light of similar relief recently granted in Barbara v. Trump, a parallel case. The court held the motion in abeyance pending further instruction from the Fourth Circuit and directed plaintiffs to notify the appellate court of its indicative ruling. 

    Topics:

    Background Checks & Employee Verification | Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students

  • Date:

    Department of Education Foreign Funding Investigation into the University of Michigan (Jul. 15, 2025)

    The U.S. Department of Education (the Department) announced that it has opened an investigation into the University of Michigan following a review of the University’s reports pursuant to Section 117 of the Higher Education Act of 1965 (20 U.S.C. §1011f), alleging inaccurate and incomplete disclosures. The Department, requested that the University provide with tax records, a written narrative of the University’s procedures related to compliance with Section 117’s foreign funding disclosure requirements, a copy of each written agreement with a foreign government, foreign educational institution, foreign non-government entity, or foreign corporate entity relating to international student admissions, detailing the participation of non-U.S. individual or entities in university or university-affiliated research collaborations, identification of all university personnel and contract personnel involved in the university’s assistance and/or efforts related to F-1 Student Visa, work permits, and travel for international students, faculty, and other personnel, identification of all involved in bilateral or multilateral research collaborations with non-U.S. research institutions, identification of all university personnel responsible for the oversight and/or administration of the university’s compliance with federal Foreign Government Talent Recruitment Program restrictions, and, all foreign gifts, grants, and contracts between the University and any foreign source. The time frame for these requests is from January 1, 2020, through the present.  

    Topics:

    Contracts | Employment of Foreign Nationals | Endowments & Gifts | External Investigations | Faculty & Staff | Grants, Contracts, & Sponsored Research | Immigration | International Students | International Ventures | Investigations | Research | Taxes & Finances

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