Federal Judge Vacates Two Department of Education DEI Directives on Procedural Grounds

In a 76-page memorandum opinion dated August 14, 2025 (“Dkt. 83”), Maryland District Court Judge Stephanie A. Gallagher found unlawful the U.S. Department of Education’s (“ED”) Dear Colleague Letter of February 14, 2025 (“Letter”), and “The Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard” (“Certification Requirement”; collectively “DEI Directives”) and vacated both under 5 U.S.C. § 706 of the Administrative Procedure Act (APA).

Section 706 of the APA requires a court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or decisions made “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D).

The Court focused on procedural deficiencies, writing that it “takes no view as to whether the policies at issue in this case are good or bad, prudent or foolish, fair or unfair. But at this stage too, it must closely scrutinize whether the government went about creating and implementing them in a manner the law requires. Here, it did not. And by leapfrogging important procedural requirements, the government has unwittingly run headfirst into serious constitutional problems.” Dkt. 83 at 4.

Atypical Procedural Posture
Typically, summary judgment motions are decided as a matter of law based on undisputed material facts after the presentation of evidence. As Judge Gallagher notes, “This case presents in an unusual posture—the government concedes that there is no administrative record . . . and, but for a handful of recently initiated DEI-related investigations, there have been no new factual developments since this Court’s ruling in April [staying the Letter and declining to rule on the Certification Requirement because it was not pled in the Amended Complaint].” Id. at 2-3. Because the briefing largely mirrored the preliminary injunction briefs, the Court “largely repeats its previously analysis verbatim” as to the Letter. Id. at 3. The Court addressed anew the Certification Requirement, which was now properly before it. Id. 

Final Agency Action
The Court found that the Letter and Certification Requirement were final agency action, reviewable under the APA, despite the government’s insistence that they did not have the force and effect of law or have direct legal consequences. Id. at 35, 39-40. The Court explained that “title VI and SFFA have never been interpreted to preclude teaching about concepts relating to race. The Administration could have issued, and perhaps was trying to issue, a guidance simply clarifying that it intended to prioritize Title VI enforcement actions pertaining to discrimination against all groups, even those in the majority. “But it went much farther than that by expanding the definitions of ‘stereotyping,’ ‘stigmatizing,’ and ‘discrimination’ to reach entirely new categories of conduct.” And it did so in a way that, at a minimum, appears legally binding to the reasonable reader.” Id. at 35-36. “Like the Letter, the Certification Requirement goes beyond merely reminding parties of existing duties or clarifying the law; it imposes affirmative obligations to certify compliance with new undefined legal requirements.” Id. at 39-40.

Procedural Deficiencies
After establishing that the Letter and Certification Requirement were final agency action, the Court analyzed the procedural deficiencies—no notice and comment period, noncompliance with the Paperwork Reduction Act, and the government’s failure to recognize that it went beyond merely restating settled principles of civil rights law. Id. at 40-43.

In further support of the conclusion that these procedural defects lead to the agency’s actions being arbitrary and capricious and not in accordance with law in violation of the APA, the Court noted the government’s failure to display awareness of its change in position, the lack of an administrative record providing the factual bases for the government’s viewpoints, and that the government “has continued to misstate the holding of SFFA in its documents announcing new enforcement actions.” Id. at 44-48.

DEI Directives Contrary to Constitutional Rights
The Court also found that where the Letter regulates specific forms of speech of a particular viewpoint by declaring them discriminatory and therefore unlawful, it violates the First Amendment. Id. at 58. The Court then considered both the Letter and Certification Requirement under due process vagueness claims, finding that both violated the Fifth Amendment because they attach consequences to violating provisions rooted in “broad and value-laden” terms like DEI that mean different things to different people. Id. at 63, 67. Such broad language is “ripe for arbitrary enforcement.” Id. at 65, 68.

Vacatur as the Appropriate Remedy
In determining the appropriate remedy, the Court concluded the Letter and Certification Requirement must be vacated under Section 706 of the APA. Id. at 69. The Court found that Trump v. CASA, Inc., 145 S.Ct. 2540 (2025), in which the Supreme Court held that universal injunctions likely exceed the equitable authority granted to federal courts, did not apply to the APA because the APA is a “direct statutory grant of federal court jurisdiction over cases arising from final agency actions.” Id. at 70. “[W]here the Supreme Court has been clear that the statutory origin of remedial authority is outcome determinative, APA relief cannot be collapsed into other injunctive-type relief, even if it looks similar in effect.” Id. at 71.

Future Implications
As of this posting, the government has not indicated whether it will appeal. Any appeal would go to the U.S. Court of Appeals for the Fourth Circuit.

The decision could serve as a guide for comparable cases that are proceeding in other courts. See Nat’l Educ. Ass’n v. Dep’t of Educ., No. 1:25-cv-00091 (D.N.H. 2025) (cross-motions for summary judgment pending following grant of preliminary injunction as to Letter, frequently asked questions associated with the Letter, the End DEI portal, and the Certification Requirement); Nat’l Ass’n for the Advancement of Colored People v. Dep’t of Educ., No. 1:25-cv-01120 (D.D.C. 2025) (motion to dismiss pending following grant of preliminary injunction as to Certification Requirement but denial of preliminary injunction as to Letter).

Judge Gallagher’s ruling may also encourage plaintiffs to litigate other government directives that are characterized as “nonbinding” but may function as final agency actions, such as the Memorandum from Attorney General Pam Bondi, Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination (July 29, 2025).

HMBR’s Higher Education Group continues to monitor this issue. If you have questions about your institution’s specific programs and activities or require assistance in conducting a risk assessment or developing response strategies, please contact us via email or by phone at 312-946-1800.

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