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Attorneys for the U.S. Department of Education argued Friday that the department鈥檚 鈥淒ear Colleague鈥� letter criticizing some diversity, equity and inclusion practices was merely a reminder to schools that existing civil rights law protects white children from discrimination just as much as children from a minority group.
But to opponents, the letter represents a significant change in policy, which compels teachers to restrain their speech about diversity for fear that their schools could lose access to critical federal funding.
The arguments were part of wide-ranging hearing in U.S. District Court for Maryland over聽聽by the American Federation of Teachers, its Maryland chapter and the American Sociological Association seeking to block enforcement of the Feb. 14 letter, which says schools that do not comply with civil rights law 鈥渇ace potential loss of federal funding.鈥�
鈥淭he government is saying, with its power of the purse: 鈥榃e don鈥檛 like diversity, equity and inclusion,鈥欌�� said Brooke Menschel, a senior attorney at Democracy Forward, who was representing the plaintiffs.
U.S. District Judge Stephanie Gallagher did not rule Friday on the request for a preliminary injunction that would prevent the government from enforcing its聽, but said she plans to issue a written ruling in the days ahead.
A similar case is unfolding in New Hampshire, where a federal judge聽聽from the government, the American Civil Liberties Union and the National Education Association. That judge is also yet to rule.
On Friday, Gallagher peppered each side with questions on a number of grounds. Did teachers have standing to challenge rules directed at school districts and states? What type of action exactly did the letter constitute? And therefore, what procedural rules did the government have to follow in order to issue it?
At one point, Gallagher probed about how the 鈥淒ear Colleague鈥� letter may be enforced, asking whether a school could come under investigation simply because one student reported feeling troubled by classroom discussions about the historical actions of a particular racial group.
鈥淪ome people are more sensitive to discussions in a classroom setting than others,鈥� Gallagher said. 鈥淲here does that line get drawn?鈥�
Abhishek Kambli, a Justice Department attorney, said the letter was not meant to police such classroom discussions. It was meant to address situations in which students are classified based on race, he said. He highlighted 鈥減rivilege walks,鈥� wherein participants are categorized based on advantages and disadvantages they鈥檝e faced because of their backgrounds.
He argued that the Civil Rights Act already disallows such activities because they are discriminatory, even though the discrimination may victimize students who comprise a majority group rather than a minority.
鈥淚t鈥檚 highly unlikely that they鈥檙e going to go after a school because they taught a certain book,鈥� Kambli said. 鈥淎ll this letter does is just clarify what the existing obligations are under Title VI [of the Civil Rights Act].鈥�
鈥淭hey鈥檙e trying to make the letter into something that it鈥檚 not,鈥� Kambli said of plaintiffs.
But Menschel said that the department, through the letter, was 鈥減utting its thumb on the scale of a particular perspective,鈥� causing reasonable teachers to fear reprisal because of particular classroom lessons, and thereby creating a chilling effect on school speech.
One passage in the letter says that 鈥渆ducational institutions have toxically indoctrinated students with the false premise that the United States is built upon 鈥榮ystemic and structural racism鈥� and advanced discriminatory policies and practices.鈥�
Menschel also pointed to the department鈥檚 creation of an聽聽through which community members can report instances of discrimination.
鈥淭he name of the portal itself points to exactly their perspective, and they are trying very hard to coerce people into sharing their views 鈥� and doing so under threat of withholding funds,鈥� Menschel said.
But Kambli argued the portal鈥檚 name was just evidence that the department has a new priority in enforcing existing civil rights law: Rooting out discrimination occurring under the guise of 鈥淒EI.鈥�
鈥淚t is perfectly allowable for the government to have a portal that鈥檚 aimed at that particular enforcement priority,鈥� Kambli said.
A portion of Friday鈥檚 hearing focused on whether the teachers鈥� groups and the American Sociological Association had legal standing to file suit and seek a preliminary injunction.
Kambli argued that the Department of Education does not directly regulate individual teachers or school administrators, but rather school districts. The teachers would have to show that they sustained a direct harm from the Feb. 14 letter in order to have standing in court, he said.
But the department has yet to open an investigation focused on something like classroom speech, Kambli said, so the educators鈥� fears are only hypothetical in nature.
鈥淚f they鈥檙e censoring based off of something that the DCL [Dear Colleague letter] does not say is disallowed, then that harm is self-inflicted,鈥� he said.
In March, the department announced that it had聽聽into dozens of colleges and universities stemming from the Dear Colleague Letter.
A department news release said 45 of the schools came under investigation because they were participating in 鈥淭he Ph.D Project,鈥� which the release called聽鈥渁n organization that purports to provide doctoral students with insights into obtaining a Ph.D. and networking opportunities, but limits eligibility based on the race of participants.鈥�
Six schools came under investigation for 鈥渁llegedly awarding impermissible race-based scholarships,鈥� and one is being investigated for 鈥渁llegedly administering a program that segregates students on the basis of race.鈥�
Although none of those investigations focus on classroom speech in particular, Menschel said they provide a 鈥渞elevant and important backdrop鈥� for assessing teachers鈥� concerns that their own classroom conversations about diversity could result in their schools being penalized by the department.
To combat claims that the issuance of the Feb. 14 letter may have violated procedural rules, including by not offering an opportunity for public comment before implementation, Kambli argued that the department only issued the letter as a courtesy to schools.
The department could have started investigating instances if considered problematic applications of DEI under existing law, he said.
鈥淲e didn鈥檛 have to provide any of this anyway,鈥� Kambli said. 鈥淲e did that to put the schools on as much notice as possible.鈥�
But, Menschel asked, if the Dear Colleague letter didn鈥檛 represent a change in policy, why did the department pull 鈥渉undreds of pages鈥� of prior civil rights guidance documents from its public-facing website?
Kambli argued that new presidential administrations are allowed to rescind Dear Colleague letters from prior administrations, calling it a 鈥渃ommon practice.鈥�
Menschel also said the department鈥檚 requirement that school systems certify their compliance with the letter indicates that it is a policy change. The plaintiffs asked\ Gallagher to pause enforcement of the letter as well as the certification requirement.
Gallagher said the latter request gave her pause, because the certification process was not mentioned in the plaintiffs鈥� original complaint, which focused entirely on the letter because the certification process had yet to be issued by the department.
鈥淚鈥檓 struggling with the fact that I am being asked to enter a preliminary injunction with something that is not mentioned anywhere in the complaint,鈥� Gallagher said.
But Menschel pushed back, arguing that the certification process is a continuation of the letter itself.
鈥淭he department is just recycling the letter, in a way, and taking another step toward implementation,鈥� Menschel said.
