Jeffrey P. Metzler

On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit issued a final Order in the case NADOHE v. Trump, permanently vacating a district court’s preliminary injunction against several provisions of Executive Order (EO) 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and EO 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (as discussed in a previous client alert, the Fourth Circuit temporarily stayed the injunction in March 2025). The EOs sought to deter diversity, equity, and inclusion (DEI) initiatives. The plaintiffs challenged the provisions that directed federal agencies to terminate all “equity-related” grants and contracts, to require all federal funding recipients to certify that they do not “promot[e] DEI” that violates antidiscrimination laws, and to identify targets for civil investigations into “illegal DEI.” The plaintiffs—an association of diversity officers in higher education, an association of university professors, and the City of Baltimore—argued that these provisions were facially unconstitutional under the First Amendment and Fifth Amendment. While the Fourth Circuit held that the “plain text” of the EOs alone did not provide enough of a foundation for an injunction that relied on a facial challenge, the court’s decision did not rule out future challenges to the Trump administration’s interpretation and application of the EO provisions.

On December 9, 2025, U.S. DOJ issued a rule (the “Rule”) rescinding a portion of its Title VI regulations to eliminate disparate-impact liability, with immediate effect. Title VI prohibits discrimination based on race, color, or national origin in any program or activity receiving federal financial assistance. The Title VI regulations identify specific discriminatory actions that are prohibited. 28 CFR 42.104. These regulations prohibited practices that had the effect of subjecting individuals to discrimination because of their race, color, or national origin, even in the absence of discriminatory intent. In other words, under the prior regulations, DOJ could claim that facially neutral programs or policies were discriminatory if they had a disproportionate and adverse impact on protected groups compared to individuals of a different race, color, or national origin. A program facing allegations of disparate impact based on outcomes data could defend against liability by proffering a substantial legitimate justification for the practice. A finding of disparate- impact liability would then be made only by identifying an equally effective alternative practice that would result in a lesser disproportionate effect on the individuals in the protected class, or by establishing that the purportedly legitimate practice was a pretext for intentional discrimination. The preamble to the Rule states that although it does not preclude the use of data showing statistical disparities to prove intentional discrimination, using statistical data in such a way “materially differs from using it to impose liability for an unintentional disparate impact.”

Last month, in American Federation of Teachers (AFT) v. U.S. Department of Education, a Maryland federal district court struck down ED’s recent efforts to curb DEI initiatives in education, vacating both the February 14, 2025, Dear Colleague Letter (DCL) and the April 3, 2025, Certification Requirement (the “Certification Requirement”). Judge Stephanie Gallagher of the U.S. District Court for the District of Maryland ruled that both the DCL and the Certification Requirement violated the Administrative Procedure Act (APA) and raised serious constitutional and procedural concerns. As a result, as of the date of this alert, both are now legally void and unenforceable across the nation. However, it is likely that the government will appeal the decision and seek a stay of the vacatur.

On July 29, 2025, U.S. Attorney General Pam Bondi issued a memorandum for all federal agencies titled “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination.” The Guidance “clarifies the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (DEI),” and “provides non-binding best practices to help entities avoid the risk of violations.” The Guidance is not premised on a change in antidiscrimination laws articulated by Congress, the Supreme Court, or even lower courts. Rather, the Guidance highlights certain practices that “the federal government has turned a blind eye toward or even encouraged,” but which the current administration deems illegal. The Guidance is specifically directed to “[e]ntities that receive federal financial assistance,” but it indicates the Administration’s policies around DEI more broadly. The Guidance states that it is interpreting Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 (both of which apply only to entities receiving federal financial assistance), Title VII of the Civil Rights Act of 1964 (which applies to employers with more than 15 employees), and the Equal Protection Clause of the Fourteenth Amendment (which applies to states).

Georgia has enacted SB 213, which amends Georgia’s Fair Business Practices Act of 1975 by banning commercial cheating services marketed to students and examinees seeking a professional license. The new law will go into effect on July 1, 2025, making Georgia one of the first states to adopt model legislation designed to prohibit the sale of “work product ... in a substantially completed form,” to students or examinees. This legislation creates a cause of action to quell the growing market for commercial cheating and cheating-for-hire services in education programs and in licensing. The law is based on model legislation from the Credential Integrity Action Alliance (CIAA), a nonprofit organization that lobbies to prevent cheating services from undermining academic and credential integrity in the United States.

Join Pillsbury attorneys Jeff Metzler, Julia Judish and Kim Jaimez as they examine new guidance issued by Attorney General Pam Bondi to recipients of federal funding regarding the DOJ’s evolving definition of “unlawful discrimination.”

Join partners Jeffrey Metzler and Craig Saperstein for a discussion covering the Trump administration’s wide-ranging efforts to reshape education through strategic federal leverage.