by CUPA-HR | March 11, 2025
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Federal Judge Orders a Halt to Part of the Trump Administration’s Executive Orders Targeting DEI Plans It Considers Illegal and Discriminatory
A federal district court judge in Baltimore issued a preliminary injunction that temporarily halts enforcement of the Trump administration’s executive orders targeting government contractors’ DEI plans. The judge granted in part the petitioner’s request for an injunction, holding that several provisions of the executive orders are unconstitutionally vague. Other executive order provisions were held to violate the Constitution’s free speech provisions. The lead plaintiff is the National Association of Diversity Officers in Higher Education, who was joined by the American Association of University Professors, the Restaurant Opportunities Centers United, and the City of Baltimore (National Association of Diversity Officers in Higher Education, et al v. Trump, et al (D. Md., No. 1:25-cv-00333. 2/21/25)).
The judge concluded that the challengers are likely to prevail on their allegations that the executive orders’ threatened enforcement, including contract termination, is “unconstitutionally vague on their face.” The injunction does not block the attorney general from pursuing investigations into allegedly illegal DEI programs.
Education Department “Dear Colleague” Letter Broadly Interprets the Supreme Court Decision in SFFA v. Harvard to Apply to All Campus Activities
The acting assistant secretary for the Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter late Friday, February 14, that broadly interprets the Supreme Court decision outlawing the use of race in college admissions in Students for Fair Admissions v. Harvard to apply to all campus policies and activities. The letter warns colleges and universities against using race as a preference in any policy and activity, and encourages anyone believing that an institution has violated civil rights laws to contact the Office for Civil Rights (OCR).
The letter directly criticizes the development of DEI activities on campus and warns that the department will not tolerate overt or covert race discrimination, which, it concluded, has become “widespread at our nation’s educational institutions.” The letter asserts that educational institutions have “toxically indoctrinated” students with the false premise that the U.S. is built upon “systemic and structural racism.” The letter indicates that the department would take appropriate steps to assess compliance with the civil rights laws no later than 14 days after the letter was issued.
On March 1, the Education Department released an FAQ offering further guidance.
Disparate Impact Legal Liability Being Targeted as Unlawful in Anti-DEI Litigation
The disparate impact legal theory of employer liability allows plaintiffs to prevail in discrimination litigation without proving discriminatory intent. Under the disparate impact liability theory, an employer can be held liable for unlawful discrimination if a neutral policy applied to all employees has a statistically adverse impact on a minority group. In such a circumstance, the employer is held liable without the necessity to prove that the employer intended to discriminate against any particular group.
The Supreme Court adopted the disparate impact liability theory in the landmark case Griggs v. Duke Power in 1971. Conservatives have long held that the disparate impact liability theory unfairly punishes employers for unintentional practices and overemphasizes protected traits in HR decision-making. It will take a Supreme Court decision to reverse current precedent. The Trump administration may adopt an enforcement position at the Department of Justice and elsewhere in which they do not prosecute disparate impact cases. Such an enforcement decision, should it be made, would likely be subject to court challenge.
Collegiate Baseball Player Sues NCAA for Anti-Trust Violation Regarding Four-Year Eligibility Restriction
A collegiate baseball player has sued the NCAA, claiming its four-year eligibility restriction on Division I baseball violates anti-trust laws (Sanchez v. NCAA (E.D. Tenn., No. 3:25-cv-00062 Comp Filed 2/12/25)). The plaintiff is seeking to play baseball at the University of Tennessee this spring. He previously played one year at a junior college and then the last three years at the University of North Carolina. Under NCAA rules, he is not allowed to play this spring because his junior college playing year used up one of his four eligibility years.
In response to a similar lawsuit (Pavia v. NCAA), the NCAA granted a limited waiver of the four-year eligibility rule for the 2025-26 season for Division I football. That waiver, however, does not apply to spring sports such as baseball.
Civil Rights Groups Sue Trump Administration to Stop Anti-DEI Initiatives and Elimination of Transgender Protection of Federal Government Employees
A group of civil rights organizations lead by the National Urban League have sued the Trump administration in an attempt to stop the administration’s anti-DEI initiatives and its elimination of protection of transgender federal government employees (National Urban League v. Trump (D.D.C. 1:25-cv-00471, Complaint 2/19/25)). The lawsuit seeks to halt the enforcement of three Trump executive orders: “EO 14151: Ending Radical and Wasteful DEI Programs and Preferencing,” “EO 14168: Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and “EO 14173: Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
The lawsuit alleges that the executive orders are unconstitutional because they suppress free speech. The groups allege that the executive orders target specific “content” and “viewpoints” and use “vague and subjective terms.” The plaintiffs argue that this makes them “constitutionally void for vagueness” under past Supreme Court precedent.
OFCCP Is Preparing to Cut Staff by Approximately 90% and Reduce Offices from 55 to 4
The acting director of the Department of Labor’s Office of Federal Contract Compliance Programs announced on February 25 in a memo it is preparing to cut employees from 479 to 50 and reduce offices from 55 to four. The OFCCP has already halted audits and investigations of government contractors’ affirmative action plans pursuant to direction from the Trump administration’s executive orders. As a result of these executive orders eliminating much of the OFCCP’s responsibilities, the OFCCP will have statutory authority to enforce only Section 503 of the Rehabilitation Act and the Vietnam War Veterans Readjustment Act.
Under the OFCCP reduction plan, the office would eliminate its Division of Enforcement, which is comprised of labor economists and statisticians who worked on enforcement and analysis of systemic cases, which will no longer be part of the OFCCP enforcement responsibilities.
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.
