Updated: This story has been updated to add a response from the U.S. Department of Education.
The nation’s largest teachers’ union is asking a federal court to halt the U.S. Department of Education’s enforcement of a directive that threatens to pull federal funding from schools that have race-based programming, arguing that it violates constitutional rights and laws that prohibit the federal government from interfering with curricula.
The lawsuit, which the NEA filed along with its New Hampshire affiliate and the American Civil Liberties Union on Wednesday in federal court in New Hampshire, is the second to challenge the department’s Feb. 14 directive that came in the form of a “dear colleague” letter to school and college leaders.
The American Federation of Teachers and the American Sociological Association sued the department over the letter on Feb. 25, similarly arguing that the memo infringes upon the Constitution’s First and Fifth amendments.
“The letter is really intended to chill educators in this broad way, and it’s just not acceptable,” said Sarah Hinger, deputy director of the ACLU’s racial justice program.
In addition to challenging the dear colleague letter and a follow-up “frequently asked questions” document to clarify it, the lawsuit asks a judge to find that the Education Department’s recently launched “End DEI” portal to be unlawful. The portal asks member of the public to submit reports of DEI in schools, similar to tip lines that states have set up to solicit reports of critical race theory being taught.
The lawsuit names the Education Department, Secretary of Education Linda McMahon, and Acting Assistant Secretary for Civil Rights Craig Trainor as defendants. A spokesperson for the federal agency said that the department does not comment on pending litigation.
The Education Department’s dear colleague letter, sent by Trainor, directed federally funded K-12 schools and universities to end any DEI programming or risk losing federal dollars, relying on the U.S. Supreme Court’s 2023 decision that struck down affirmative action in college admissions. The department argued that the court’s ruling “applies more broadly,” beyond only college admissions.
It also came on the heels of executive orders from President Donald Trump that also seek to curb DEI.
The letter has caused confusion. Legal experts are arguing that it can’t undo existing civil rights laws, but they worry educators may comply anyway to avoid investigations from the department. The follow-up, nine-page, FAQ document seeking to further explain its limitations did not dispel concerns over its alleged constitutional infringements, according to the lawsuit from the teachers’ union and the ACLU.
Instead, the letter, along with the FAQs and the “End DEI” portal, “radically resets … longstanding positions on civil rights laws that guarantee equality and inclusion,” and presumes districts are acting unlawfully, the complaint says.
The teachers’ union argues that the original memo, which doesn’t define DEI or spell out what runs afoul of the guidance it lays out for schools, is too vague for educators to interpret—causing an English teacher to question how he teaches classics, a social studies teacher to fear assigning research projects on or discussing racist history from the Civil War to the modern era, and a school counselor to rethink how she discusses stereotypes and identity with students.
It also may cause a professional quandary for some educators who have to choose between following the memo as they interpret it or following conflicting professional requirements and using best practices, according to the complaint.
“Our members are scared and are seeing that schools and colleges are reacting to the threats by the Department of Education to withhold federal funding by pulling down efforts to advance diversity, equity, and inclusion; by shuttering offices that did that work; by canceling opportunities for higher education professors to share their scholarship with their colleagues,” said Alice O’Brien, general counsel for NEA. “We believe it’s incredibly important for schools and colleges and universities to be able to teach students about the world as it is. And the world as it is is a multiracial, very diverse place.”
The department’s new “End DEI” portal oversteps the agency’s authority and violates constitutional rights, the complaint argues. Meanwhile, there’s a conflict in the department’s priorities, according to the complaint: The department has stalled many of its civil rights investigations, but is “solicit[ing] complaints focused on the communication of ideas ED disfavors and tendentiously describes as ‘divisive ideologies and indoctrination.’”
And though the FAQ acknowledges that the federal government has no say in curriculum, the lawsuit argues it “does nothing to upset the text of the Letter itself, which indicate[s] that ED is concerned with ‘indoctrination’ and ‘teaching,’” according to the complaint.
“That’s a pretty bold—and, we think, unconstitutional and illegal—overreach by the department,” Hinger said.
The lawsuit comes just days after McMahon was formally confirmed by the U.S. Senate and sworn in, after facing questions over how some of Trump’s executive actions on DEI would affect schools and instruction during her confirmation hearing. Following her swift swearing in, McMahon said in a speech that education “ought not to be corrupted by political ideologies, special interests, and unjust discrimination.”
“The Department of Education’s role in this new era of accountability is to restore the rightful role of state oversight in education and to end the overreach from Washington,” she said.
