DEI Task Force Update (July 1, 2025)

Diversity  |  July 1, 2025

Gibson Dunn’s Workplace DEI Task Force aims to help our clients navigate the evolving legal and policy landscape following recent Executive Branch actions and the Supreme Court’s decision in SFFA v. Harvard. Prior issues of our DEI Task Force Update can be found in our DEI Resource Center.

Starting in July 2025, we will be moving to a once-per-month publishing schedule. We appreciate your continued readership and remain available to answer any questions about developments or your own DEI programs. Please do not hesitate to reach out to any member of our DEI Task Force or the authors of this Update (listed below).

Key Developments:

On June 27, Catherine Eschbach, the Director of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”), published a letter encouraging federal contractors to voluntarily submit information to the agency detailing their efforts to unwind their affirmative action programs. In the letter, Eschbach cites to President Trump’s Executive Order 14173, which, among other things, rescinded prior Executive Order 11246, which established race and sex-based affirmative action obligations for federal contractors. Eschbach asserts that these affirmative action obligations “may have led contractors to engage in unlawful disparate treatment based on race and sex in hiring and employment decisions” and through “unlawful, unfair, and unsafe discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (DEI).” The letter notes that, pursuant to Executive Order 14173, federal contractors were required to wind down their affirmative action programs by April 21, 2025. The letter invites federal contractors “to volunteer information in narrative form about what actions they have taken in response to EO 14173,” including by “confirming: (1) that they have reviewed their EO 11246 affirmative action efforts; (2) whether they believe any modifications to employment and recruitment practices are necessary; and (3) if so, what those changes are and steps the federal contractor has taken to modify those practices.” The letter provides a long list of examples of practices that federal contractors may choose to report on, including:

  • “making trainings, sponsorship programs, leadership development programs, educational funding, or other privileges of employment available only to employees of a certain race or sex;”
  • “placement goals that were based on race or sex;”
  • “ratings by diversity organizations that graded employers on factors that included the provision of resources designed to promote the rise of non-white, non-male employees;”
  • “using applicants’ or employees’ participation in race- or sex-related (internal or external) groups or organizations as a “plus factor” or proxy for race or sex in employment and hiring decisions;”
  • “tying executive compensation to meeting race- or sex-based hiring, promotion, retention, representation, or other employee-demographic-related goals;”
  • “mandating courses, orientation programs, or trainings that are designed to emphasize and focus on racial stereotypes;”
  • “encouraging employees to make recruitment efforts to or employment referrals of certain candidates based on race or sex.”

The letter states clearly the “decision to provide any information is completely up to the contractor,” and offers no safe harbor to federal contractors in exchange for disclosures.

On June 27, the Supreme Court held 6-3 that federal courts lack authority to issue “universal injunctions.” The case is Trump v. Casa, Inc., in which Plaintiffs (comprising individuals, organizations, and States) challenged Executive Order 14160, which identifies circumstances in which a person born in the United States is not recognized as an American citizen. In three different cases, district courts issued “universal injunctions” which barred the implementation and enforcement of the Executive Order nationwide. The Courts of Appeals upheld the injunctions. The Supreme Court held that federal courts do not have such authority unless doing so is necessary to afford the parties complete relief. The Supreme Court reasoned that the federal courts’ power to issue remedies stems from the Judiciary Act of 1789, which conferred on courts the authority to issue equitable remedies analogous to those “traditionally accorded by courts of equity” at the time of the founding. The Supreme Court reasoned that universal injunctions are not sufficiently analogous to any relief available in the courts of equity at the time of the founding, at which time equitable remedies were typically party-specific. Accordingly, the Supreme Court held that federal courts do not have the power to provide relief to nonparties. Justice Sotomayor, joined by Justice Kagan and Justice Jackson, dissented. The dissent disputed the majority’s historical analysis, writing that courts have historically issued broad equitable relief intended to benefit parties and nonparties, emphasized that the Executive Order’s repudiation of birthright citizenship is unconstitutional, and raised practical concerns in allowing the government to execute illegal policies against nonparties. This decision will have significant implications for future litigants, and will substantially curtail their ability to obtain broad relief in challenging executive orders, including as they relate to DEI. For more information, please see our client alert here.

On June 27, Judge Loren AliKhan of the U.S. District Court for the District of Columbia permanently enjoined enforcement of Executive Order 14263, an order targeting the law firm Susman Godfrey LLP (“Susman”). Like the executive orders targeting law firms Jenner & Block LLP, Perkins Coie LLP, and Wilmer Cutler Pickering Hale and Dorr LLP, EO 14263 ordered federal agencies to suspend security clearances for Susman employees and terminate government contracts with the law firm; required government contractors to disclose business they do with Susman; restricted access to federal buildings for Susman employees; and restricted Susman employees from future federal employment. Section 1 of the EO accused the firm of “engag[ing] in unlawful discrimination, including discrimination on the basis of race.” Specifically, the order identified an alleged Susman program that “offers financial awards and employment opportunities only to ‘students of color.’”

In a 53-page opinion, the court granted Susman’s motion for summary judgment and permanently enjoined enforcement of the executive order. As the courts did in the Jenner, Perkins, and WilmerHale cases, the court concluded that the executive order “constitutes unlawful retaliation against Susman for activities that are protected by the First Amendment,” including among other things, “its expression of its beliefs regarding diversity.” The court also held the order violated the firm’s clients’ First Amendment rights to association and the firm’s right to petition, as well as the Fifth Amendment rights to due process and equal protection. The court also held the order was unconstitutionally vague and violated the separation of powers “because it improperly seizes authority that the Constitution grants to the judiciary.”

On June 26, 2025, the Department of Justice’s Civil Rights Division (“DOJ”) opened an investigation into the University of California’s hiring practices. In a letter to Dr. Michael Drake, the President of the University of California, Assistant Attorney General Harmeet Dhillon wrote that the “investigation is based on information suggesting that the University of California may be engaged in certain employment practices that discriminate against employees, job applicants, and training program participants based on race and sex in violation of Title VII” and that there is “reason to believe” that the “‘UC 2030 Capacity Plan’ precipitated unlawful action by the University of California and some or all its constituent campuses.” The UC 2030 Capacity Plan “describes how the University plans to support California through enrollment strategies and addressing the state’s needs,” among other things. A spokesperson for the University of California stated that the “University of California is committed to fair and lawful processes in all of [its] programs and activities, consistent with federal and state anti-discrimination laws” and that University will “work in good faith with the Department of Justice as it conducts its investigation.”

On June 18, the Senate Committee on Health, Education, Labor and Pensions held a confirmation hearing for Andrea Lucas, Acting Chair of the EEOC. Lucas is currently finishing her first five-year term as an EEOC Commissioner and has been nominated for a second term. Lucas stated during the hearing: “As head of the EEOC, I’m committed to dismantling the identity politics that have plagued our civil rights laws. . . . President Trump has given the agency the most ambitious civil rights agenda in decades. If I have the honor of being reconfirmed, I am passionate about achieving that agenda.” During the hearing, the committee also heard from nominees for three positions in the Department of Labor: Jonathan Berry for Solicitor of Labor, current EEOC Acting General Counsel Andrew Rogers for Administrator of the Wage and Hour Division, and former U.S. House Representative Anthony D’Esposito for Inspector General. A video of the hearing is available here.

On June 18, several unions and educational associations, including the American Association of Physics Teachers, the American Association of Colleges and Universities, the American Association of Professors, and the American Educational Research Association, filed a complaint against the National Science Foundation (“NSF”) and its Chief of Staff Brian Stone in the U.S. District Court for the District of Columbia, alleging that the NSF “terminated over $1 billion of previously awarded scientific grants, cooperative agreements, and other financial awards” in violation of the Administrative Procedure Act, the Spending and Appropriations clauses of the Constitution, and principles of separation of powers. Specifically, the plaintiffs allege that NSF announced new grant priorities and terminated previously awarded grants following President Trump’s Executive Order 14151, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” and seek a declaration that the change in priorities and grant terminations were unlawful, as well as injunctive relief barring Defendants and their agents “from continuing to carry out the termination of awards based on a change in agency priorities.”

On June 16, Judge William G. Young of the U.S. District Court for the District of Massachusetts invalidated the Trump administration’s termination of over $1 billion in National Institute of Health-funded research grants due to their perceived connection to DEI. The ruling came after a lengthy June 16 hearing in two consolidated cases challenging the grant termination decisions: American Public Health Association et al. v. National Institutes of Health et al, No. 1:25-cv-10814 (D. Mass. 2025) and Commonwealth of Massachusetts et al v. Kennedy, Jr. et al., No. 1:25-cv-10787 (D. Mass. 2025). The plaintiffs asserted in their respective complaints that the grant recissions violated the Administrative Procedure Act because they were arbitrary and capricious, not in accordance with law, in excess of statutory authority, in violation of the grantees’ constitutional rights, and an unreasonable delay of agency action. They also argued the government’s directive to cancel the grants was void for vagueness and violated the separation of powers and the Spending Clause. Ruling from the bench, Judge Young stated that the government’s action represented unlawful “racial discrimination and discrimination against America’s LGBTQ community,” adding that he had “never seen a record where racial discrimination was so palpable.” Judge Young ordered that the funding be restored pending appeal. On June 23, Judge Young entered a written order granting judgment for plaintiffs for “all the reasons stated on the record on June 16, 2025.” That same day, the Trump administration filed a notice of appeal.

On June 10, Republicans on the U.S. House of Representatives’ Committee on Education and the Workforce sent a letter to Alan Garber, President of Harvard University, announcing an investigation into the University’s hiring practices. The letter states that the Committee “is concerned about recent reports” that Harvard “may be discriminating in hiring and employment” on the basis of race, color, religion, sex, and national origin in violation of Title VII. The letter also states that “publicly available documents produced or published” by the University suggest the University “may have been and may still be unlawfully discriminating.” In particular, the Committee cites the University’s “Best Practices for Conducting Faculty Searches” document, which recommends that job applicant lists “include women and minorities,” and directs individuals responsible for hiring to “encourage diversity” and “bring forward women or minority applicants.” The Committee also highlights that interviewers at the University were given “Diversity-Related Sample Interview Questions” to assess candidates’ “understanding and commitment to diversity, inclusion, and belonging.” The Committee further references a Commissioner’s Charge filed in April 2025 by Andrea Lucas, Acting Chair of the EEOC, alleging that the University violated Title VII in its hiring practices with respect to tenured and tenure-track faculty. The Committee requests that the University provide its written policies regarding the consideration of race, color, religion, sex, or national origin in hiring, as well as an explanation of “whether and how” the University or its employees consider these factors in hiring and employment.

On June 9, the U.S. District Court for the Northern District of California granted in part a motion to preliminarily enjoin nine provisions of the President’s recent executive orders regarding DEI (Executive Orders 14151, 14168, and 14173). The court’s order is limited in scope, applying only to the plaintiffs, nine nonprofit organizations. The case is San Francisco AIDS Foundation et al. v. Donald J. Trump et al., No. 4:25-cv-01824 (N.D. Cal. 2025). The plaintiffs filed suit on February 20 against President Trump and several other government agencies and actors. The complaint challenges the executive orders on several grounds, including the Equal Protection Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the Free Speech Clause of the First Amendment. Plaintiffs also argue the executive orders are ultra vires and exceed the authority of the President. The plaintiffs seek preliminary and permanent injunctive relief. Of the nine challenged provisions, the court granted plaintiffs’ motion to preliminarily enjoin (1) a provision requiring the plaintiffs to certify that they do not operate any programs promoting DEI (the “Certification Provision”), (2) a provision directing agencies to terminate funding for all “equity-related grants or contracts” (the “Equity Termination Provision”), and (3) two provisions requiring agencies to terminate funding for any program that promotes “gender ideology” (the “Gender Termination Provision” and “Gender Promotion Provision”). The court found that the plaintiffs “likely have standing” to challenge these four provisions, that the plaintiffs demonstrated a likelihood of success on the merits that these provisions violate Separation of Powers principles and the plaintiffs’ rights under the First and Fifth Amendments, and that the plaintiffs demonstrated they face “imminent loss of federal funding critical to their ability to provide lifesaving healthcare and support services to marginalized LGBTQ populations.”

Media Coverage and Commentary:

Below is a selection of recent media coverage and commentary on these issues:

  • Law 360, “Indiana’s AG Targets DEI At Butler, DePauw Universities” (June 4): Law 360’s Grace Elletson reports that Indiana’s Attorney General, Todd Rokita, sent letters to Butler University and DePauw University, seeking information on their DEI initiatives. She reports that Rokita suggested in a press release that the universities’ practices could run afoul of the U.S. Supreme Court decision in SFFA v. Harvard. Rokita specifically noted Butler’s $200,000 DEI Innovation Fund and a statement by DePauw leadership that SFFA did not require a change in its current practices. In a statement to Law 360, Butler University said it will respond and “takes seriously its commitment to compliance with all state and federal laws.” Elletson reports that DePauw stated it does not discriminate in hiring or admissions.
  • Law 360, “OPM Memos Push Changes In Federal Hiring Based on ‘Merit’” (May 29): Law 360’s Lauren Berg reports that, on May 29, the Office of Personnel Management released two memos outlining changes to federal workforce hiring. One memo lays out a “merit hiring plan,” which emphasizes “skills-based hiring” and requires, among other things, that certain federal job applicants draft essays related to their commitment to the Constitution and the President’s policy priorities. A second memo, titled “Hiring and Talent Development for the Senior Executive Service,” provides new executive core qualifications. Berg reports that the Office of Personnel Management instructed agencies to conduct hiring in line with EEOC guidance from March 2025, which Berg notes is not currently binding but that this could change if the EEOC re-establishes a voting quorum following President Trump’s nomination of an additional commissioner.
  • Boston Globe, “MIT Announces Plans to Close DEI Office” (May 29): Camilo Fonseca of the Boston Globe reports that the Massachusetts Institute of Technology announced that it would “wind down” its DEI office, the Institute Community and Equity Office, and eliminate the “vice president for equity and inclusion” position. Fonseca reports that this follows an announcement in February 2025 that Karl Reid, MIT’s “first-ever vice president for equity and inclusion,” was leaving his role. An MIT spokesperson said the university had an “unwavering” commitment to attracting diverse talent and that the Institute Community and Equity Office would be replaced by a standing committee of students, staff, and faculty intended to promote community building and support.
  • Forbes, “Corporate Mentions of ‘Diversity’ And ‘DEI’ Dropped 72% in 2025, Analysis Finds” (May 29): Conor Murray of Forbes reports that the use of the acronym “DEI” in corporate reports decreased by 98% from 2024 to 2025. Murray reports that Gravity Research, a firm that studies how companies respond to social pressure, reviewed over 1,300 financial filings, proxy statements, earnings calls, and other documents and found that the use of the word “diversity” dropped by 62%, “equity” by 48%, and “inclusion” by 43%. Murray reports that the firm found use of more neutral terms, like “belonging,” had increased between 2023 and 2024 but declined between 2024 and 2025. He also reports that the firm found that two in five companies intended to decrease engagement with LGBTQ Pride Month this year. Murray reports that these changes follow pressure from the federal government and anti-DEI activists.
  • The Atlantic, “The Era of DEI for Conservatives Has Begun” (May 27): Rose Horowitch of The Atlantic writes that universities are rolling out new initiatives to attract conservative professors. She writes that, as of the last “comprehensive study” in 2014, one in ten professors in academia identified as “conservative.” Horowitch writes that Johns Hopkins recently announced a partnership with a “center-right” think tank, the American Enterprise Institute, designed to increase and retain conservative faculty. She notes this is part of a trend, reporting that state legislatures have provided funds to state-funded schools to establish “schools of civic thought,” including at Arizona State University, the University of Texas at Austin, the University of North Carolina at Chapel Hill, and the University of Tennessee at Knoxville. She writes that the Trump administration made clear in its demands of Harvard University its position that universities should hire more conservative faculty members.
  • NPR, “Corporate America’s retreat from DEI has eliminated thousands of jobs” (May 27): NPR correspondent Maria Aspan reports that the number of people employed in DEI-related roles has declined, with 270 positions eliminated since January 2025. She writes that companies increased the number of people employed in those roles after 2020, with more than 20,000 people employed to focus on DEI by early 2023. She writes that since the Supreme Court’s decision in SFFA v. Harvard, companies have faced increasing backlash for DEI initiatives and that the number of new job postings related to belonging, social impact, and culture peaked in 2022 and 2023. The number of new and existing DEI-related positions has continued to fall following the Trump Administration’s executive orders directed at DEI. Aspan reports that executive recruiters indicate a slowdown in companies seeking to hire chief diversity officer and other top executives, and that a decrease in DEI-related positions disproportionately impacts women and people of color, who tend to hold those roles in higher numbers.

Case Updates:

Below is a list of updates in new and pending cases:

1. Contracting claims under Section 1981, the U.S. Constitution, and other statutes:

  • Desai v. PayPal, No. 1:25-cv-00033-AT (S.D.N.Y. 2025): On January 2, 2025, Andav Capital and its founder Nisha Desai sued PayPal, alleging that PayPal unlawfully discriminates by administering its investment program for minority-owned businesses in a way that favors Black and Latino applicants. Desai, an Asian-American woman, alleges PayPal violated Section 1981, Title VI, and New York anti-discrimination law by failing to fully consider her funding application and announcing first-round investments only in companies with “at least one general partner who was black or Latino.” She seeks a declaratory judgment that the investment program is unlawful, an injunction barring PayPal from “knowing or considering race or ethnicity” in administering the program, and damages. On May 7, 2025, Andav Capital and Nisha Desai filed an amended complaint against PayPal Holdings, Inc. and PayPal Ventures, adding a claim under the Equal Credit Opportunity Act, which prohibits any creditor from discriminating in “any aspect of a credit transaction.” PayPal is represented by Gibson Dunn in this matter.
    • Latest update: On May 28, 2025, PayPal moved to dismiss the amended complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). PayPal argued, among other things, that plaintiffs’ claims are untimely under Section 1981 and New York state law, that her credit discrimination claims are inapplicable because fund investments were not credit, and that fund investments were not public accommodations under New York City law.
  • Landscape Consultants of Texas, Inc. et al. v. City of Houston, Texas et al., No. 4:23-cv-03516 (S.D. Tex. 2023), No. 1:25-cv-00033-AT (S.D.N.Y. 2025): White-owned landscaping companies challenged the City of Houston’s government contracting set-aside program for “minority business enterprises” under the Fourteenth Amendment and Section 1981. On November 29, 2024, plaintiffs and defendant Midtown Management District filed cross-motions for summary judgment. Midtown Management argued that the plaintiffs failed to show the unconstitutionality of the programs. The City of Houston filed its own motion for summary judgment on November 30, 2024, contending that the plaintiffs lack standing and that the programs satisfy the requirements of the Equal Protection Clause. On February 11, 2025, the court denied all motions for summary judgment in a single page order. On March 11, 2025, the court entered an order delaying setting a briefing schedule until after Houston votes on a new ordinance related to the program. On March 31, 2025, Houston notified the court that the City Council tabled consideration of the ordinance, which would adopt a relevant disparity study, for up to 30 days. On April 9, 2025, the plaintiffs responded that they are “prepared to move forward with trial” and that the delay deprived them of “their day in court.” The plaintiffs also contended that, even if Houston adopted the new ordinance, their constitutional and statutory claims would be unaffected. On May 5, 2025, Houston submitted a notice to the court stating that the City Council discussed the ordinance at its April 30, 2025 meeting and unanimously voted to refer the ordinance back to the administration to permit business owners and stakeholders to comment. On May 8, Houston submitted a “final notice” to the court, stating that the City Council voted to, among other things, “amend[] various provisions of Chapter 15 of the Code of Ordinances, Houston Texas, relating to Minority, Women, and Small Business participation in City contracting; add[] Article XII establishing a Veteran-Owned Business Enterprise Program; [and] adopt[] City-Wide Goals for the City’s Minority, Women, and Small Business Enterprise Program.”
    • Latest update: On May 23, 2025, the City of Houston moved to dismiss the case under Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. The City argued that, because the new ordinance “effectively rescinded and replaced the earlier version of the [Minority, Women, and Small Business Enterprise] program,” and because the plaintiffs’ claims seek only prospective injunctive relief, their claims are now moot. On June 13, 2025, the plaintiffs filed an opposition to the motion to dismiss, asserting that their claims are not moot because the revised ordinance retains the allegedly unconstitutional and race-based contract goals from the initial ordinance and “continue[s] the unlawful conduct.” The plaintiffs argue that the revised ordinance has caused them a cognizable injury because they received an email a day after the new ordinance was implemented, informing them that their contract would be subject to suspension if they did not comply with the goals set out by the revised ordinance.

2. Employment discrimination and related claims:

  • Bobowicz v. Powell et al., 5:24-cv-00246 (W.D.N.C. 2024): On November 18, a former employee of the Federal Reserve Board sued the Chair of the Federal Reserve, the Chief Operating Officer, and four Federal Reserve supervision officials, alleging he faced discrimination on the basis of his religion, race, gender, and sexual orientation in violation of his rights under Title VII of the Civil Rights Act and under the Age Discrimination in Employment Act. The plaintiff claims he was discriminated against due to his religious beliefs, which precluded him from receiving the COVID-19 vaccination. He further alleges he became “a target for termination” because he was “a heterosexual, white, male who was the oldest employee in both his local and national [teams].” In addition to damages, reinstatement, and front and back pay, the plaintiff seeks a declaration that the Federal Reserve’s diversity initiatives violate the Fourteenth Amendment’s equal protection clause. On January 6, 2025, the plaintiff filed an amended complaint, adding allegations that “the Federal Reserve Board’s DEI policies were part of a more comprehensive federal effort to incorporate” protected characteristics into hiring and employment practices.
    • Latest update: On June 6, 2025, the plaintiff filed a second amended complaint, adding the Federal Reserve Bank of New York and two of its employees as defendants. He contends he was employed by the Federal Reserve and constructively employed by the Federal Reserve Bank of New York, and that both are liable for the alleged discrimination and retaliation.
  • Cifarelli v. Nexstar Media Group, Inc. et al., No. 2:25-cv-05656-MCA-SDA (D.N.J. 2025): On May 27, 2025, a white male plaintiff sued his former employer, Nexstar Media Group, Inc., alleging that the company unlawfully terminated him on the basis of his race, gender, and age, in violation of Title VII, Section 1981, the New Jersey Law Against Discrimination Act, and the Age Discrimination in Employment Act. The plaintiff claims that Nexstar’s DEI policy “directly tied” managers’ performance reviews to “illegal diversity objectives” and condoned “making hiring, retention, bonus, and promotional decisions” based on protected characteristics, including “race, sex, and age.” The “purposeful outcome” of that policy, the plaintiff alleges, was to decrease “the number of white male sales workers.”
    • Latest update: The defendants’ answer is due July 28, 2025.
  • Do No Harm v. Lee II, No. 3:24-cv-1334 (M.D. Tenn. 2024): On November 7, 2024, Do No Harm sued Tennessee Governor Bill Lee, seeking to enjoin Tennessee laws that require the governor to consider racial minorities for appointment to the Board of Chiropractic Examiners and the Board of Medical Examiners. Do No Harm alleges that this racial consideration requirement violates the Equal Protection Clause. This case mirrors Do No Harm v. Lee, currently on appeal in the Sixth Circuit, which seeks to enjoin a law requiring consideration of racial minority candidates for the Board of Podiatric Medical Examiners (No. 3:23-cv-01175-WLC (M.D. Tenn. 2023)). On December 5, 2024, Do No Harm moved for a preliminary injunction. On December 19, 2024, the parties filed a joint motion to stay proceedings. The parties explained that on December 18, 2024, Tennessee Attorney General Jonathan Skrmetti certified to the Speakers of the Tennessee House of Representatives and the Tennessee Senate that Tennessee could not defend the constitutionality of the laws at issue in this dispute. The parties sought to stay proceedings during the statutory 30-day period Tennessee law provides for certifying indefensible laws to the legislature. On December 20, 2024, the court granted the motion to stay proceedings.
    • Latest update: On May 29, 2025, Do No Harm filed a notice of voluntary dismissal on the basis that the Tennessee legislature had repealed the challenged language. On May 30, 2025, the court dismissed the case.
  • Spitalnick v. King & Spalding, LLP, No. 24-cv-01367-J (D. Md. 2024): On May 9, 2024, Sarah Spitalnick, a white, heterosexual female, sued King & Spalding, alleging that the firm violated Title VII and Section 1981 by deterring her from applying to its Leadership Counsel Legal Diversity internship program. Spitalnick alleged that she believed she could not apply after seeing an advertisement that stated that candidates “must have an ethnically or culturally diverse background or be a member of the LGBT community.” On September 19, 2024, King & Spalding moved to dismiss, arguing that Spitalnick failed to state a claim, her claims were time-barred, and she lacked standing because she never applied to the program. On November 8, 2024, Spitalnick responded to the firm’s motion to dismiss, arguing that her claim was not time-barred and that being deterred from applying was sufficient to confer standing. On February 25, 2025, the court granted the defendant’s motion to dismiss for lack of standing, holding that the plaintiff had not adequately pled that that she was “able and ready” to apply to the position she claims she was denied. On March 24, 2025, the plaintiff filed a motion for reconsideration, arguing that the court committed “legal error” by failing to defer to the findings of the EEOC, and by misapplying standing doctrine.
    • Latest update: On May 29, 2025, the court denied the plaintiff’s motion for reconsideration, holding that the plaintiff failed to identify any error of law. The court reasoned that, even if the defendant had violated Title VII, it would not have given her standing, because the alleged violation “did not affect the plaintiff in an individualized way.” The court cited other cases finding that a potential applicant is not harmed by a discriminatory job criterion unless the prospective applicant shows she was “able and ready” to apply. Finally, the court held that it was not bound to defer to the EEOC’s factual findings and noted that the EEOC made no findings about standing.

3. Challenges to statutes, agency rules, executive orders, and regulatory decisions:

  • American Alliance for Equal Rights v. City of Chicago, et al., No. 1:25-cv-01017 (N.D. Ill. 2025): On January 29, 2025, AAER and two white male individuals filed a complaint against the City of Chicago and the City’s new casino, Bally’s Chicago, alleging that the City precluded them from investing in the new casino based on their race, in violation of Sections 1981, 1982, 1983, and 1985. Under the Illinois Gambling Act, an application for a casino owner’s license must contain “evidence the applicant used its best efforts to reach a goal of 25% ownership representation by minority persons and 5% ownership representation by women.” The plaintiffs alleged that the casino precluded them from participating in the casino’s initial public offering by limiting certain shares to members of specified racial minority groups. On April 4, 2025, the City of Chicago moved to dismiss the complaint for failure to state a claim. That same day, defendants Bally’s Chicago and Bally’s Chicago Operating Company moved to dismiss as well. On May 20, 2025, the parties filed a joint status report indicated they had agreed on the principal terms of a settlement that would resolve the action.
    • Latest update: On June 6, 2025, the parties filed a joint stipulation of dismissal. On June 9, 2025, the court terminated the case pursuant to the joint stipulation of dismissal.
  • American Alliance for Equal Rights v. Ivey,, No. 4:23-cv-03516 (S.D. Tex. 2023), No. 2:24-cv-00104 (M.D. Ala. 2024): On February 13, 2024, AAER filed a complaint against Alabama Governor Kay Ivey, challenging a state law that requires the governor to ensure there are no fewer than two individuals “of a minority race” on the Alabama Real Estate Appraisers Board. The Board has nine seats, including one for a member of the public with no real estate background, which has been unfilled for years. Because there was only one minority member among the Board at the time of filing, AAER asserts that state law requires that the open seat go to a person with a minority background. AAER states that one of its members applied for this final seat, but was denied on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. On March 29, 2024, Governor Ivey answered the complaint, admitting that the Board quota is unconstitutional and will not be enforced. On March 19, 2025, AAER moved to substitute Laura Clark, whom AAER had referred to as “Member A” in its complaint, as the plaintiff. On April 2, 2025, Governor Ivey responded to the motion to substitute, arguing that AAER lacked good cause for the substitution, and that the motion was merely an attempt by AAER to “resist discovery.” On April 17, 2025, the court denied AAER’s motion to substitute because AAER failed to show “good cause” for the substitution and could have substituted Ms. Clark as named plaintiff before the deadline to amend the pleadings, but chose not to do so.
    • Latest update: On June 5, 2025, AAER, Governor Ivey, and the intervenor-defendant Alabama Association of Real Estate Brokers filed a stipulation of dismissal. On June 6, 2025, in a one-page order, the court dismissed the case with prejudice.
  • American Federation of Teachers, et al. v. U.S. Department of Education, et al., No. 1:25-cv-00628 (D. Md. 2025): On February 25, 2025, the American Federation of Teachers, the American Federation of Teachers – Maryland, and the American Sociological Association sued the U.S. Department of Education (“DOE”), challenging the DOE’s “Dear Colleague Letter” issued on February 14, 2025. The plaintiffs allege that the letter—which purported to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance”— violated the First and Fifth Amendments and the Administrative Procedure Act. The letter had instructed educational institutions to ensure that their policies and actions “comply with federal civil rights laws,” and to cease efforts to circumvent prohibitions on the use of race through “relying on proxies,” “third-party contractors, clearinghouses, or aggregators.” On March 5, 2025, the plaintiffs amended their complaint to add the Eugene School District as a plaintiff and to add factual allegations about a subsequent DOE FAQ document published on February 28, 2025. Specifically, the plaintiffs alleged that the February 28, 2025 FAQ document did not “cure the Letter’s defects,” including that it did not “dispel” the impression that the February 14 letter broadly forbade voluntary associations “even if such groups are open to all.” After that point, on April 3, 2025, the DOE advised state education agencies that they would be required to certify compliance with the Administration’s interpretation of Title VI and the Supreme Court’s decision in SFFA. On April 9, 2025, the plaintiffs filed an expedited motion to preliminarily enjoin the certification requirement. On April 24, 2025, the court granted in part the plaintiffs’ motion for a preliminary injunction, finding the Plaintiffs likely to succeed on their APA and First Amendment claims. The court did not address the Fifth Amendment claim. The court declined to enjoin the certification requirement because the plaintiffs moved to enjoin it without raising any facts about it in their amended complaint, which they had filed prior to the DOE’s certification requirement announcement.
    • Latest update: On June 5, 2025, the plaintiffs filed a motion for summary judgment, arguing the letter and later certification requirement violate the APA, First Amendment, and Fifth Amendment.
  • Doe 1 v. EEOC,, No. 1:25-cv-01124 (D.D.C.), No. 2:24-cv-00104 (M.D. Ala. 2024): On April 15, 2025, three current law students sued the EEOC in the U.S. District Court for the District of Columbia, seeking to enjoin the EEOC’s efforts to collect workplace demographic information from 20 law firms. The plaintiffs state that they have applied to work at one or more of the 20 targeted firms and that they are “deeply worried that their data will be divulged [to the EEOC], and that they may be targeted as a result.” The plaintiffs assert that the EEOC engaged in ultra vires action by informally investigating the law firms without a charge being filed with the agency. They ask the court to enjoin the EEOC from “investigating any law firm through means that do not satisfy the requirements of conducting an investigation under Title VII’s EEOC charge process,” to order the EEOC to withdraw the letters it sent to the 20 law firms, and to order the EEOC to return any information already collected from those firms.
    • Latest update: On June 5, 2025, the plaintiffs filed a motion for summary judgment and moved for class certification. The plaintiffs seek to certify a class defined as: “individuals whose names and other personal information are requested in EEOC’s investigative letters.” In their motion for summary judgment, the plaintiffs argue that the investigation exceeds the EEOC’s authority and violates the Paperwork Reduction Act. They seek declaratory and injunctive relief and argue that they will suffer irreparable harm from retention of their personal information. On June 16, 2025, the defendants filed a motion to stay consideration of the plaintiffs’ motions for summary judgment. The defendants argued that the plaintiffs “prematurely” filed their motions for summary judgment and class certification before the defendants’ deadline to respond to the initial complaint. The defendants asserted that they intend to file a motion to dismiss, and previewed the substantive arguments they intend to make, including that the court lacks subject matter jurisdiction over these actions by the Executive, the plaintiffs lack standing because the EEOC’s requests are directed at law firms and not the plaintiffs, and that there is no private right of action under the Paper Reduction Act. The defendants also intend to argue that ultra vires claims rarely succeed and are a “Hail Mary.” The defendants also requested that their window to respond to the amended complaint be extended to July 31, 2025. On June 26, 2025, the Court granted the EEOC’s motion in part, granting the EEOC an extension of time to respond to the plaintiffs’ Amended Complaint and an extension of time to respond to the Plaintiffs’ Motion for Summary Judgment, and denying without prejudice the Plaintiffs’ Motion for Class Certification.
  • King County v. Turner, 2:25-cv-00814 (W.D. Wa. 2025): On May 2, 2025, eight cities and counties in Washington, California, Massachusetts, Ohio, and New York filed claims against the U.S. Department of Housing and Urban Development, the U.S. Department of Transportation, the Federal Transit Administration, and respective agency heads, challenging the conditioning of government grants upon compliance with executive orders relating to immigration, gender identity, and DEI programs. On May 5, 2025, the plaintiffs sought a temporary restraining order preventing the government from imposing or enforcing the challenged grant conditions, and to maintain the status quo, until the court could rule on the plaintiffs’ motion for preliminary injunction. On May 6, 2025, the defendants opposed plaintiffs’ motion for a temporary restraining order (“TRO”), arguing the court lacked jurisdiction because the “Tucker Act vests exclusive jurisdiction over such disputes with the Court of Federal Claims.” On May 7, 2025, the court granted the plaintiffs’ TRO for 14 days. On May 14, 2025, the defendants filed an opposition to the plaintiffs’ motion for a preliminary injunction, again arguing, inter alia, that the plaintiffs lacked subject matter jurisdiction. On May 21, 2025, the plaintiffs filed an amended complaint adding new jurisdictions to the litigation, and filed a second motion for a TRO and preliminary injunction. On May 23, 2025, the defendants opposed this second TRO and preliminary injunction with similar arguments. On May 23, 2025, the court granted the plaintiffs’ second motion for a temporary restraining order, observing “that the Second Motion for TRO raises questions of law and fact that are materially identical to the First Motion for TRO.”
    • Latest update: On June 3, 2025, the court granted the plaintiffs’ second motion for a preliminary injunction. The court first held it had jurisdiction because the Tucker Act was inapplicable, given the “[p]laintiffs seek injunctive and declaratory relief only,” and “do not seek money damages based on a breach of contract claim.” The court also held that the defendants “have failed to demonstrate that the contested conditions fall within” a “limited category of unreviewable actions” under the APA. After establishing jurisdiction, the court found the plaintiffs were likely to succeed on the merits of their claim because, “in attempting to condition disbursement of funds in part on grounds not authorized by Congress, but rather on Executive Branch policy, Defendants are acting in violation of the Separation of Powers principle.” The court also found the plaintiffs to have established several forms of irreparable harm, as they are “in the position of having to choose between accepting conditions that they believe are unconstitutional, and risking the loss of hundreds of millions of dollars in federal grant funding.” On June 9, 2025, the defendants filed a notice of appeal to the Ninth Circuit.
  • Rhode Island Latino Arts v. National Endowment for the Arts, 1:25-cv-00079 (D. R.I. 2025): On March 6, 2025, four arts non-profits filed a complaint in the United States District Court for the District of Rhode Island against the National Endowment for the Arts (“NEA”) and its acting chair, seeking to enjoin the NEA from incorporating Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (“the EO”), into its application criteria for NEA grants. Specifically, on February 6, 2025, the NEA amended its grant application to say, “The applicant understands that federal funds shall not be used to promote gender ideology, pursuant to Executive Order No. 14168.” The plaintiffs alleged that, because their art involves themes that could be considered “gender ideology,” the application of the EO “effectively bar[s] [them] from receiving NEA grants.” The NEA’s actions, the plaintiffs alleged, are thus contrary to the NEA’s governing statute, arbitrary and capricious under the Administrative Procedure Act, and in violation of the First and Fifth Amendments. On March 6, 2025, the Plaintiffs filed a motion for a preliminary injunction and expedited hearing, or in the alternative, a temporary restraining order, enjoining the application of the EO to the NEA funding criteria. On March 7, 2025, the NEA rescinded the language about “gender ideology” in its funding criteria pending further review and extended the application deadline for the grants in question. On April 3, 2025, the court denied the Plaintiffs’ motion for a preliminary injunction in light of the NEA’s rescission of the contested application criteria, but noted nevertheless that, should the language be restored, the plaintiffs were likely to succeed on the merits of their APA and First Amendment claims. On May 12, 2025, the plaintiffs filed an amended complaint to account for the NEA’s rescission of the EO language from its funding criteria, alleging that the perception that a project “promotes gender ideology” may still impact the grantmaking process, even if the NEA did not formally apply the EO to grantmaking decisions.
    • Latest update: On May 27, 2025, the defendants answered the amended complaint and presented five affirmative defenses, including that the court lacked subject matter jurisdiction, that the complaint failed to state a claim upon which relief may be granted, and that the NEA “was acting in good faith, with justification, and pursuant to authority.”
  • San Francisco AIDS Foundation et al. v. Donald J. Trump et al., No. 3:25-cv-01824 (N.D. Cal. 2025): On February 20, several LGBTQ+ groups filed suit against President Trump, Attorney General Pam Bondi, and several other government agencies and actors, challenging the President’s recent executive orders regarding DEI (EO 14151, EO 14168, and EO 14173). The complaint alleges that these EOs are unconstitutional on several grounds, including the Equal Protection Clause of the Fifth Amendment, the Due Process Clause of the Fifth Amendment, and the Free Speech Clause of the First Amendment. It also argues the EOs are ultra vires and exceed the authority of the President. The plaintiffs seek preliminary and permanent injunctive relief. On March 3, the plaintiffs filed a motion for preliminary injunction.
    • Latest update: On June 9, 2025, the Court granted in part the plaintiffs’ motion for a preliminary injunction. For more information, see above.
  • State of California et al v. U.S. Department of Education et al., No. 1:25-cv-10548 (D. Mass. 2025): On March 6, 2025, the states of California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York, and Wisconsin (collectively, “the Plaintiff States”) sued the U.S. Department of Education, alleging that it arbitrarily terminated previously awarded grants under the Teacher Quality Partnership (“TQP”) and Supporting Effective Educator Development (“SEED”) programs in violation of the APA. On March 6, 2025, the Plaintiff States filed a motion for a temporary restraining order to prevent the Department of Education from “implementing, giving effect to, maintaining, or reinstating under a different name the termination of any previously-awarded TQP and SEED grants.” The Plaintiff States argued that the “abrupt and immediate” termination of the TQP and SEED programs threatened imminent and irreparable harm. The court issued a TRO on March 10, 2025, concluding that the Plaintiff States were likely to succeed on the merits of their APA claim, that they adequately demonstrated irreparable harm absent temporary relief, and that the balance of the equities weighed in their favor. The government appealed the order the next day, arguing, among other things, that the district court lacked jurisdiction to review the Department of Education’s decisions on how to allocate funds because the APA does not permit judicial review of “agency action” that “is committed to agency discretion by law.” On April 4, 2025, the United States Supreme Court stayed the TRO, concluding that the government was likely to succeed in showing the district court lacked jurisdiction to grant the TRO under the Administrative Procedure Act. On April 15, 2025, the parties filed a joint status report. The government indicated it intends to move to dismiss the complaint on jurisdictional grounds by May 12, its deadline to answer the complaint. The plaintiffs asked the court to order “expedited production of the administrative record to assist the court in resolving the jurisdictional arguments that the government is expected to make in its motion to dismiss.” The government opposed expedited discovery and instead contended “that the proper and most efficient approach” would be for it to file the administrative record in conjunction with its answer, should the court deny the forthcoming motion to dismiss. On April 16, the court issued an order stating that it would assess the request for expedited production of the administrative record after reviewing the forthcoming motion to dismiss.
    • Latest update: On June 2, 2025, the Plaintiff States filed an amended complaint, newly alleging that the Department of Education violated the Constitution’s Separation of Powers mandates and acted ultra vires by terminating the TQP and SEED grants against the intent of Congress, and that the Department of Education’s actions violated the Spending Clause because the terminations “amount to a new and retroactive condition on TQP and SEED funding,” without fair notice or reasonable relation to the federal interest. On June 30, the Department of Education filed a motion to dismiss for lack of jurisdiction or, in the alternative, to transfer the case to the Court of Federal Claims. In its motion, the Department argued that the APA’s waiver of sovereign immunity does not extend to claims sounding in contract, like the Plaintiff States’ claim. In the alternative, the Department argues that “the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any express or implied contract with the United States.”
  • State of Tennessee et al. v. U.S. Department of Education et al., No. 3:25-cv-00270 (E.D. Tenn. 2025): On June 11, 2025, the State of Tennessee and the group behind the Supreme Court’s SFFA decision, Students for Fair Admissions, sued the DOE, alleging that the DOE’s Hispanic-Serving Institutions (HSI) program violates the Spending Clause of the U.S. Constitution and the Due Process Clause of the Fifth Amendment. The plaintiffs allege that the program is unlawfully discriminatory because only schools whose student body populations are at least 25% Hispanic are eligible to receive HSI funding.
    • Latest update: The docket reflects that the defendants were served on June 16, 2025. Their deadline to answer the complaint is July 7, 2025.

4. Actions against educational institutions:

  • Kleinschmit v. University of Illinois Chicago, No. 1:25-cv-01400 (N.D. Ill. 2025): On February 10, 2025, a former professor at the University of Illinois Chicago sued the university, alleging that it unlawfully discriminated against white male faculty candidates and discriminated and retaliated against the plaintiff by firing him after he objected to the school’s “racial hiring programs.” The plaintiff raises claims under Sections 1981 and 1983. On May 6, 2025, the university filed a motion to dismiss. The motion contends, among other things, that (1) the plaintiff lacks standing because the harms he claims to have experienced, including not having his contract renewed, are not redressable through the injunctive remedies he seeks, (2) the plaintiff cannot maintain his action because the Board of Directors of the University of Illinois enjoys sovereign immunity under the Eleventh Amendment, (3) Sections 1981 and 1983 do not apply to the university, as it is an alter ego of the state and not a “person” under the meaning of the statutes, (4) the Eleventh Amendment bars monetary damages against the individual defendants in their official capacities as employees of the university, and (5) the individual defendants lacked involvement in the alleged adverse employment actions.
    • Latest update: On May 27, 2025, the plaintiff filed an amended complaint, adding new defendants from the University’s administration and adding allegations that the University, a recipient of federal funds, violated Title VI of the Civil Rights Act of 1964 by intentionally discriminating against the plaintiff on the basis of his race, color, and ethnicity. On June 6, 2025, the court found that the amended complaint rendered the defendant’s motion to dismiss moot. On the same day, the plaintiff filed a second amended complaint, adding to his “Prayer for Relief” that the court declare the university’s actions violated 42 U.S.C. § 2000d.

Legislative Updates:

On May 13, 2025, Senator Tom Cotton (R-AR), along with Senators Marsha Blackburn (R-TN) and Pete Ricketts (R-NE), introduced S. 1745, the “Dismantling Ideological Policies for Semiconductors and Science Act.” The bill’s purpose is to “repeal[] or amend[] programs and requirements related to DEI” that were passed as part of the CHIPS and Science Act of 2022, which “provide[d] funds to support the domestic production of semiconductors and authorize[d] various programs and activities of the federal science agencies” and mandated research and funding to support DEI in scientific and technological fields. Pub. L. No. 117-167; 136 Stat. 1372, 1399 (2022). This new bill proposes amending the CHIPS and Science Act by repealing its DEI-related provisions, including the “[r]epeal of [the] requirement to recruit STEM educators that advance DEI for National STEM Teacher Corps… [r]epeal of [the] program to award funds for research to support DEI in STEM… [and] [r]epeal of DEI best practices in the academic and Federal STEM workforce.” The bill asserts that STEM research and funding should be awarded “without regard to race, color, ethnicity, sex, or sexual orientation.”

The following Gibson Dunn attorneys assisted in preparing this client update: Jason Schwartz, Mylan Denerstein, Zakiyyah Salim-Williams, Cynthia Chen McTernan, Zoë Klein, Cate McCaffrey, Sameera Ripley, Anna Ziv, Jenna Voronov, Emma Eisendrath, Kristen Durkan, Simon Moskovitz, Teddy Okechukwu, Beshoy Shokralla, Heather Skrabak, Maryam Asenuga, Angelle Henderson, Kameron Mitchell, Lauren Meyer, Chelsea Clayton, Maya Jeyendran, Albert Le, Allonna Nordhavn, Felicia Reyes, Godard Solomon, Laura Wang, and Ashley Wilson.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Labor and Employment practice group, or the following practice leaders and authors:

Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group
Washington, D.C. (+1 202-955-8242, jschwartz@gibsondunn.com)

Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group
Los Angeles (+1 213-229-7107, ksmith@gibsondunn.com)

Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group
New York (+1 212-351-3850, mdenerstein@gibsondunn.com)

Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer
Washington, D.C. (+1 202-955-8503, zswilliams@gibsondunn.com)

Molly T. Senger – Partner, Labor & Employment Group
Washington, D.C. (+1 202-955-8571, msenger@gibsondunn.com)

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