DEI Task Force Update (June 10, 2025)

Diversity  |  June 10, 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. Should you have questions about developments in this space or about 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 5, the Supreme Court unanimously held that Title VII of the Civil Rights Act of 1964 imposes no additional evidentiary requirements on majority-group plaintiffs. The case is Ames v. Ohio Department of Youth Services, No. 23-1039, in which a straight woman sued her employer under Title VII, claiming she was denied a promotion and later demoted based on her sexual orientation, in part because her employer hired a gay woman for the position to which she had applied and a gay man to fill her previous position after the demotion. The decision invalidates a rule adopted in the Sixth, Seventh, Eighth, Tenth, and D.C. Circuit Courts of Appeal requiring majority-group plaintiffs to show “background circumstances to support the suspicion that the defendant is th[e] unusual employer who discriminates against the majority” in order to sustain a Title VII claim. Writing for the unanimous Court, Justice Ketanji Brown Jackson wrote that the “background circumstances” requirement was inconsistent with the statute and the Court’s interpretation of it. Justice Jackson emphasized in her opinion that Title VII prohibits covered discrimination of any kind, not merely discrimination against a limited set of historically disadvantaged groups, which comports with the Court’s modern approach to most anti-discrimination statutes. In circuits that previously applied the “background circumstances” requirement, this decision will lower the barrier for majority-group plaintiffs to bring (and increase the burden on employers to defend against) so-called reverse-discrimination claims. For more information on this opinion, please see our June 5 client alert.

On May 27, Judge Richard J. Leon of the U.S. District Court for the District of Columbia permanently enjoined enforcement of Executive Order 14250, which, among other things, ordered federal agencies to suspend security clearances for employees of the law firm Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) and terminate government contracts with the law firm; required government contractors to disclose business they do with WilmerHale; restricted access to federal buildings for WilmerHale employees; and prevented WilmerHale employees from future federal employment. The EO asserted that the firm had “abandoned the profession’s highest ideals and abused its pro bono practice to engage in activities that undermine justice and the interests of the United States.” The EO specifically accused the law firm of “obvious partisan representations to achieve political ends, support[ing] efforts to discriminate on the basis of race, back[ing] the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and further[ing] the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.” The order also accused the firm of discriminating against employees through use of race-based “targets,” presumably in hiring and promotion.

In a 73-page opinion, the court granted a permanent injunction prohibiting enforcement of the order. Judge Leon opined in the introductory portion of the opinion that “this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!” Judge Leon went on to consider and reject arguments by the government regarding WilmerHale’s standing to sue, the ripeness of the dispute, and whether aspects of the EO fell within the political question doctrine and outside the court’s reach. Turning to the merits, the court held that the EO retaliated against WilmerHale for its protected speech, discriminated against the firm for its viewpoint, violated the firm’s right to petition the government, and violated its clients’ right to freely associate with the firm, all of which violated the First Amendment. The court also held that the EO was an ultra vires presidential action in violation of the separation of powers, void for vagueness, and a violation of due process. The court rejected WilmerHale’s argument that the EO violated the Spending Clause, reasoning that the EO did not conflict with a mandate from Congress, as the Spending Clause requires. Judge Leon also rejected WilmerHale’s argument that the EO violated the Equal Protection Clause, because WilmerHale did not allege that a group of similarly situated firms were treated differently. The court held that the EO violated the Sixth Amendment right to counsel but not the Fifth Amendment right to counsel, as WilmerHale’s complaint acknowledged that other, similarly situated firms could represent WilmerHale’s clients in its place.

On May 23, Judge John D. Bates of the U.S. District Court for the District of Columbia permanently enjoined enforcement of Executive Order 14246, an order targeting the law firm Jenner & Block LLP (“Jenner”) similar in effect to the EO targeting WilmerHale discussed above. Like EO 14250, EO 14246 ordered federal agencies to suspend security clearances for Jenner employees and terminate government contracts with the law firm; required government contractors to disclose business they do with Jenner; restricted access to federal buildings for Jenner employees; and prevented Jenner employees from future federal employment. Section 1 of the EO accused the firm of “abandon[ing] the profession’s highest ideals, condon[ing] partisan ‘lawfare,’ and abus[ing] its pro bono practice to engage in activities that undermine justice and the interests of the United States,” specifically pointing to Jenner’s representation of transgender clients and asylum seekers, its decision to hire Andrew Weissmann as a partner after he participated in the Mueller investigation, and its alleged use of “race-based ‘targets’” in hiring.

In a 52-page opinion, the court granted Jenner’s motion for summary judgment and denied the government’s motion to dismiss. The court held that Jenner’s decision to represent transgender clients and asylum seekers—as well as Weissmann’s participation in the Mueller investigation and related statements about President Trump—was political expression, and that the EO retaliated against Jenner for that speech in violation of the First Amendment. The court also held that the EO violated Jenner’s clients’ Fifth and Sixth Amendment rights to choose their counsel. With respect to the EO’s mention of Jenner’s alleged race-based hiring practices, the court noted that the government has not “provide[d] any evidence” of this accusation “or [its] truth.” The court held that the president may not direct government agencies to investigate Jenner’s employment practices because of its speech. The court denied, however, Jenner’s request for a permanent injunction against future similar actions by the administration, taken pursuant to Section 1 of the EO, for lack of standing. Judge Bates explained that “Section 1 does not direct any action” but instead constitutes protected government speech. Judge Bates reasoned, “If this conclusion results in more federal action taken against Jenner, those actions could very well be equally unconstitutional. But Article III requires this court to place its faith in future courts to prevent harm from befalling Jenner if and when that occurs . . . At this juncture, the court cannot take that role for itself.”

On June 2, in response to the government’s May 29 motion, Judge Bates issued an order clarifying the scope of the court’s injunctive relief. First, the court explained that the injunction prohibiting the president from directing government agencies to investigate Jenner’s employment practices runs only in favor of Jenner. This clarification is identical to the clarification Judge Howell issued on May 20 in Perkins Coie LLP v. U.S. Dep’t of Justice, et al., No. 25-716 (D.D.C. 2025). Second, the court declined the government’s request to clarify that the order does not impact Section 1 of the EO. The court explained that while the order does not enjoin all future uses of Section 1 in the “abstract,” it properly requires that entities subject to the EO rescind past enforcement actions based on the statements in Section 1. The case is Jenner & Block LLP v. U.S. Dep’t of Justice et al., No. 25-916 (D.D.C. 2025).

On May 22, the U.S. Department of Homeland Security (“DHS”) stated in a press release that it would revoke Harvard University’s Student and Exchange Visitor Program (“SEVP”) certification, which would have prevented Harvard from enrolling any international students on F- or J-nonimmigrant visas for the 2025-2026 academic year. In the press release, the agency asserted that Harvard had refused to provide the department with information about certain campus activism involving foreign students, created an “unsafe campus environment,” including for Jewish students, and continued to enact “racist DEI practices.” The following morning, on May 23, Harvard filed a 257-paragraph complaint against DHS, U.S. Immigration and Customs Enforcement (“ICE”), Attorney General Pam Bondi, Secretary of State Marco Rubio, and others, alleging, among other things, that DHS’s actions violated the Administrative Procedure Act, the First Amendment, and the Fifth Amendment’s due process requirements. Harvard requested a preliminary and permanent injunction enjoining the revocation of the university’s SEVP certification, as well as a declaratory judgment that the action was unconstitutional. That same day, Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts granted a temporary restraining order halting the revocation of the SEVP certification. The order found that DHS’s actions had the potential to “sustain immediate and irreparable injury.” This is the latest in a series of disputes between the White House and Harvard over Harvard’s DEI programs, alleged antisemitism, and response to protestors on campus. On April 29, after the government agreed to give the university 30 days to challenge the SEVP certification revocation in court, the court extended the temporary order until it decides a forthcoming preliminary injunction motion. The case is President and Fellows of Harvard Coll. v. U.S. Dep’t of Homeland Security et al., No. 1:25-cv-11472 (D. Mass. 2025).

On May 22, the EEOC issued a press release listing the “exhaustive efforts” the agency has taken during the second Trump Administration “to restore evenhanded enforcement of employment civil rights laws on behalf of all Americans.” This list includes, among other things, efforts to combat alleged discrimination “[a]rising [f]rom DEI.” The press release names several actions taken by the agency to effectuate this goal, including “root[ing] out DEI-related discrimination practices in our nation’s elite law firms” and “securing major commitments to merit-based employment practices in EEOC settlements with six of the nation’s largest law firms.” The press release also lists actions taken to effectuate the Administration’s goals of protecting religious freedom, combatting national origin discrimination involving “[p]references for [f]oreign [w]orkers,” defending “[w]omen’s [s]ex-[b]ased [r]ights,” and fighting for the rights of disabled veterans.

On May 20, Judge Beryl Howell of the U.S. District Court for the District of Columbia issued a minute order clarifying the scope of a previously issued injunction blocking the implementation of Executive Order 14230, which had targeted the law firm Perkins Coie LLP. The court explained that its injunction prohibits the president from directing government agencies to investigate Perkins Coie’s employment practices, but did not prohibit actions directed at other law firms. The order came hours after the U.S. Department of Justice (“DOJ”) filed a motion seeking clarification from the court on the scope of the injunction, particularly as it relates to a provision in the Executive Order that directs the EEOC and the U.S. Attorney General to investigate the employment practices of large law firms. The case is Perkins Coie LLP v. U.S. Dep’t of Justice, et al., No. 25-716 (D.D.C. 2025).

On May 20, the EEOC issued a press release in connection with the start of the “2024 EEO-1 Component 1 data collection” process, during which covered entities must report to the EEOC on the sex, race, and ethnicity of their employees. In the message, EEOC Acting Chair Andrea Lucas “remind[ed]” employers that they “may not use information about [their] employees’ race/ethnicity or sex—including demographic data [they] collect and report in EEO-1 Component 1 reports—to facilitate unlawful employment discrimination based on race, sex, or other protected characteristics in violation of Title VII.” Lucas further noted: “Different treatment based on race, sex, or another protected characteristic can be unlawful discrimination, no matter which employees or applicants are harmed. There is no ‘diversity’ exception to Title VII’s requirements.” She also noted that the President recently issued an executive order “direct[ing] all agencies, including the EEOC, to deprioritize ‘disparate impact’ enforcement.” Lucas stated that the EEOC will “fully and robustly comply with this and all Executive Orders” and will prioritize “remedying intentional discrimination claims” rather than disparate impact claims.

On May 19, DOJ announced that it was establishing a program called the Civil Rights Fraud Initiative, under which the DOJ intends to use the False Claims Act to investigate and enforce knowing violations of federal civil rights laws committed by recipients of federal funds. According to the May 19, 2025 memorandum about the initiative, issued by Deputy Attorney General Todd Blanche, an example of such a violation may include an educational institution that receives federal funds but “encourages antisemitism, refuses to protect Jewish students, allows men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions.” Under the initiative, the DOJ can also pursue legal claims against recipients of federal funds for “knowingly engaging in racist preferences, mandates, policies, programs, and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin.” The memorandum asserts that many entities and institutions continue to have unlawful DEI practices after the Supreme Court’s decision striking down race-based admissions practices in SFFA v. Harvard but camouflage them “with cosmetic changes that disguise their discriminatory nature.” The memorandum also “strongly encourages” private parties to file lawsuits under the False Claims Act and to report discrimination by federal-funding recipients to DOJ.

On May 16, three anonymous law students filed an amended complaint against the EEOC in the U.S. District Court for the District of Columbia. The original complaint, filed on April 15, 2025, challenged the EEOC’s investigations into the DEI practices of 20 large law firms, which has probed firms’ hiring, promotion, and workforce reduction practices. The plaintiffs seek to enjoin the disclosure of, among other things, sensitive data on employees’ race, sex, and compensation. The plaintiffs allege that the investigations exceed the agency’s authority under Title VII, because they are not based upon a formal charge, as evidenced by the public nature of the investigations. The plaintiffs further claim that the EEOC’s investigation into law firms violates the Paperwork Reduction Act, because the EEOC did not undergo public comment or obtain approval from the Office of Management and Budget before posing “identical questions to the twenty firms.” The plaintiffs seek a declaratory judgment, an injunction barring the collection of the requested information, and an order compelling the EEOC to withdraw the investigative letters and return any information collected pursuant to those letters. The case is Doe v. EEOC, No. 1:25-cv-01124 (D.D.C. 2025). The amended complaint adds class claims, and notes that the plaintiffs seek to represent “[a]ll individuals whose names and other personal information are requested in EEOC’s investigative letters.”

On May 15, Judge Kacsmaryk of the Northern District of Texas vacated portions of a 2024 EEOC Guidance document (the “Guidance”), which had reflected the EEOC’s prior position that a harassment claim under Title VII can be based on “the repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” In August 2024, the State of Texas and the Heritage Foundation filed a lawsuit to challenge the Guidance under the Administrative Procedure Act. In ruling for the plaintiffs, the court reasoned that the text of Title VII refers to discrimination based on “sex,” and not “gender identity” or “sexual orientation.” According to the district court, the Supreme Court’s 2020 decision in Bostock v. Clayton County affirmed that the word “sex” refers “only to biological distinctions between male and female” and supports the proposition that an employer cannot fire an employee “simply for being homosexual or transgender,” but does not require that employers accommodate an employee’s dress, bathroom, or pronoun preferences. The case is State of Texas et al. v. Equal Employment Opportunity Commission et al., No. 2:24-cv-00173 (N.D. Tex.). The EEOC has since modified the Guidance to identify the portion vacated by the court. EEOC Chair Andrea Lucas has separately indicated that she continues to oppose the 2024 Guidance while acknowledging that rescinding the Guidance would require a majority vote by the Commission.

On May 30, the Tennessee State Attorney General’s Office announced in a LinkedIn post that it planned to “completely transform civil-rights enforcement Tennessee” through a new statutorily created Civil Rights Enforcement Division. The office is currently hiring attorneys, investigators, and intake professionals to staff the new office. The web postings related to this new office are not clear as to what enforcement priorities the Office will focus its efforts on.

Media Coverage and Commentary:

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

  • New York Times, “Trump Intends to Cancel All Federal Funds Directed at Harvard” (May 27): Stephanie Saul of the New York Times reports that the Trump Administration wrote in a letter to federal agencies on May 27 that it intends to cancel the federal government’s remaining contracts with Harvard University. Those contracts have an estimated value of $100 million. As Saul reports, “[t]he letter instructs agencies to respond by June 6 with a list of contract cancellations. Any contracts for services deemed critical would not be immediately canceled but would be transitioned to other vendors.” Contracts with nine agencies will be affected, including DHS (which contracts with the school for senior executive training) and the NIH (which contracts with the school to operate various studies). This news comes just one week after the U.S. Department of Health and Human Services (“HHS”) announced that it planned to terminate $60 million in federal grants to Harvard. As reported by Mrinmay Dey of Reuters, on May 19, HHS announced in a post on X that the action addresses “Harvard University’s continued failure to address antisemitic harassment and race discrimination.” Dey reports that the university has previously stated that it “cannot absorb the entire cost” of frozen federal funding and is working to help researchers acquire alternative funding. As Dey reports, these funding cuts follow nearly $3 billion in other federal funding cuts to the university over the last several weeks.
  • Law.com, “Supreme Court Affirms Fraud Conviction of Business That Lied About Using Minority-Owned Subcontractor” (May 22): Law.com’s Jimmy Hoover reports on a May 22, 2025 decision by the U.S. Supreme Court upholding the convictions of a public works company and its manager who lied about using minority-owned subcontractors in connection with a public works project. In an opinion written by Justice Amy Coney Barrett, the Court held that the federal wire fraud statute did not require a showing that the defendant intended to hurt the victim’s bottom line. Justice Clarence Thomas wrote a concurring opinion criticizing the federal Disadvantaged Business Enterprise program as “impos[ing] an explicitly race-based classification system,” adding he is “skeptical” of the program’s legality. Thomas stated, “[i]t is implausible to think that a ‘reasonable person’ would ‘attach importance’ to contract provisions that mandate constitutional violations.”
  • Law360, “DOJ to Probe Whether Chicago’s Hiring Is Too Pro-Black” (May 20): Law360’s Grace Elletson reports that DOJ’s Civil Rights Division sent a letter to Chicago Mayor Brandon Johnson informing him that the Division had opened an investigation into whether the city impermissibly prioritized Black job applicants. Elletson reports that the letter follows remarks by Johnson at a publicly livestreamed event, where he touted the diverse makeup of his administration and stated that, “Our people hire our people.” The EEOC has also joined the investigation. In a statement provided to Law360, the Mayor’s office stated that it is aware of the letter but has not yet officially received it.
  • The New York Times, “Justice Dept. to Use False Claims Act to Pursue Institutions Over Diversity Efforts” (May 19): Glenn Thrush and Alan Blinder of the New York Times reports that DOJ announced on May 19, 2025, its intent to use the False Claims Act to challenge antisemitism and DEI initiatives at universities. They report that an internal memorandum states that the Department will seek fines and damages for violations of the False Claims Act and consider criminal prosecutions in extreme circumstances. According to Thrush and Blinder, the department’s anti-fraud unit and the Civil Rights Division will work together in this effort. The article highlights that the Department has focused to-date on Harvard University, including notifying the university that it is under investigation for alleged failure to comply with the Supreme Court’s ruling in SFFA. Thrush and Blinder report that universities have been subject to the False Claims Act before, noting that in 2019, North Greenville University in South Carolina struck a $2.5 million deal after being accused of paying unlawful incentive compensation to recruit students and that a decade prior, the University of Phoenix settled a student recruitment case for $67.5 million.
  • Bloomberg, “Despite Backlash From Trump, DEI Hasn’t Disappeared at US Companies” (May 19): Bloomberg’s Simone Foxman reports that, following actions by the Trump Administration to eliminate DEI initiatives, many companies have made modest changes but have not entirely eliminated existing commitments and programs. Foxman writes that companies have faced backlash for DEI initiatives since their proliferation in 2020, including from politicians and activist groups. She states that, now, companies largely aim to avoid scrutiny by pulling back initiatives that inhabit legal gray areas. According to Foxman, many companies have sunset specific demographic targets and restructured DEI initiatives, but that other programs remain in place, including retaining employee resource groups that are now open to all and continuing to seek broad workforces while emphasizing that hiring pathways are open to all.
  • AP News, “As Trump targets DEI, Republican-led states intensify efforts to stamp it out” (May 16): David A. Lieb of AP News reports that Republican-led states have seen a “surge” in efforts to end DEI initiatives since January 2025. He writes that, since 2023, two dozen states have passed laws limiting DEI in higher education, and that new laws in Tennessee, West Virginia, and Wyoming also limit DEI initiatives in state and local governments. Lieb reports that “more governors are issuing directives now,” noting, for example, that West Virginia Governor Patrick Morrisey ordered an end to DEI positions and activities in executive departments and state-funded institutions on his first day in office. He also highlights a recent Idaho law banning DEI offices and programs in higher education and prohibits schools from requiring certain courses for graduation, unless connected to a degree in race or gender studies.

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:

  • Strickland et al. v. United States Department of Agriculture et al., No. 2:24-cv-00060 (N.D. Tex. 2024): On March 3, 2024, the plaintiff farm owners sued the USDA over the administration of financial relief programs that allegedly allocated funds based on race or sex. The plaintiffs alleged that only a limited class of socially disadvantaged farmers, including certain races and women, qualify for funds under these programs. On June 7, 2024, the court granted in part the plaintiff’s motion for a preliminary injunction. The court enjoined the defendants from making payment decisions based directly on race or sex. However, the court allowed the defendants to continue to apply their method of appropriating money, if done without regard to the race or sex of the relief recipient.
    • Latest update: On May 9, 2025, the parties submitted a joint motion for voluntary remand, which indicated that the USDA would revise the challenged programs “to cure the race and sex discrimination that the agency no longer defends.” The court granted the remand motion on May 15, 2025, retaining jurisdiction over the case during the pendency of the remand and ordering the USDA to finalize its reconsideration of the programs by September 30, 2025.
  • 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 state anti-discrimination law (NYSHRL) 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 April 16, 2025, PayPal moved to dismiss the complaint, asserting that the plaintiffs lack standing because they never applied for funding under the challenged program. PayPal also argued that the plaintiffs’ claims are untimely, and that the plaintiffs failed to state a claim on the merits. PayPal is represented by Gibson Dunn in this matter. On May 7, 2025, the plaintiff filed an amended complaint, adding a claim under the Equal Credit Opportunity Act (“ECOA”), which prohibits any creditor from discriminating in “any aspect of a credit transaction.” The plaintiff alleges that PayPal, as a creditor, violates the ECOA by racially discriminating against businesses who are excluded from PayPal’s investment program for minority-owned businesses.
    • Latest update: On May 28, 2025, PayPal moved to dismiss the amended complaint. PayPal argued that the plaintiffs’ Section 1981 and state law claims are untimely, their credit discrimination claims fail on the merits because the plaintiffs do not allege they applied for or were qualified to receive credit under the challenged program, and their local law claim should be dismissed because the relevant fund investments were not public accommodations.
  • State of Missouri v. Starbucks Corp., 4:25-cv-00165 (E.D. Mo. 2025): On February 11, 2025, the State of Missouri filed a lawsuit against Starbucks, alleging that Starbucks is violating state and federal anti-discrimination laws. Specifically, the complaint alleges that Starbucks unlawfully ties executive compensation to diversity-and-inclusion-related quotas and metrics; provides discriminatory advancement opportunities through race- and gender-based mentoring programs, training programs, and employee “networks”; and discriminates on the basis of race and sex with respect to its board membership. The complaint raises four claims under Title VII, including (1) unlawful hiring and firing practices, (2) unlawful training programs, (3) unlawful segregation or classification of employees, and (4) unlawful printing or circulation of discriminatory employment and training materials. The complaint also alleges discriminatory contract impairment under Section 1981 and related state-law claims. On April 7, 2025, the defendant filed a motion to dismiss for lack of jurisdiction and failure to state a claim.
    • Latest update: On May 21, 2025, the plaintiff filed its opposition to the motion to dismiss, arguing that (1) the court has personal jurisdiction because Starbucks applies its “discriminatory policies” in Missouri; (2) the court has subject matter jurisdiction because Missouri can assert “quasi-sovereign interests” related to the well-being of its residents; (3) governments can bring claims under Title VII, and its exhaustion provisions are not applicable to states; (4) the Attorney General can bring a Section 1981 claim on behalf of its residents; and (5) the state law claims are within the Attorney General’s statutory authority because the defendant engaged in discriminatory practices affecting Missouri residents.

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

  • 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” 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 (APA).
    • Latest update: On May 12, 2025, the defendants filed a motion to dismiss or, in the alternative, transfer to the Court of Federal Claims. Relying on the Supreme Court’s April 4, 2025 decision, the defendants argue that the court lacks subject matter jurisdiction because the APA does not authorize suits against the government seeking to enforce a contractual obligation to pay money, and that plaintiffs are required to bring such suits in the Court of Federal Claims under the Tucker Act.
  • Chicago Women in Trades v. President Donald J. Trump, et al., No. 1:25-cv-02005(N.D. Ill. 2025): On February 26, 2025, Chicago Women in Trades (“CWIT”), a non-profit organization, sued President Trump, challenging EOs 14151 and 14173. CWIT claims that these EOs violate principles of separation of powers, the First and Fifth Amendments, and the Spending Clause of the U.S. Constitution. On April 14, 2025, the court preliminary enjoined enforcement of key provisions of the EOs, including a provision terminating CWIT’s Women in Apprenticeship and Nontraditional Occupations Act grant, which served as one of five federal sources of funding for the organization. On April 18, 2025, CWIT moved to modify the preliminary injunction to prevent termination of its four other sources of federal funding. The court denied the motion on May 7, 2025, finding “CWIT has not shown a manifest error of law warranting modification of the preliminary injunction to encompass any of CWIT’s other sources of federal funding.” On May 9, 2025, the parties filed a joint status report regarding discovery. CWIT indicated its intent to seek discovery about, among other things, the administration’s guidance on implementing the challenged EOs, its definitions of DEI and DEIA as used in the EOs, guidance about what the government deems to be “illegal DEI and DEIA policies,” and the termination of grants on DEI-related grounds pursuant to those EOs. The government argued this discovery was unnecessary because “the at-issue claims are purely legal and require no factual development for resolution.”
    • Latest update: Following a May 14, 2025 hearing, the court ordered discovery to proceed. On May 14 and 21, 2025, the Department of Labor filed status reports indicating its continued compliance with the court’s preliminary injunction.
  • Do No Harm v. Gianforte, No. 6:24-cv-00024-BMM-KLD (D. Mont. 2024): On March 12, 2024, Do No Harm filed a complaint on behalf of “Member A,” a white female dermatologist in Montana, alleging that a Montana law requiring the governor to “take positive action to attain gender balance and proportional representation of minorities resident in Montana to the greatest extent possible” when making appointments to the 12-member Medical Board violates the Fourteenth Amendment. Do No Harm alleged that since ten seats are currently held by six women and four men, Montana law requires that the remaining two seats be filled by men, which would preclude Member A from holding the seat. Following Governor Gianforte’s motion to dismiss, on February 5, 2025, the court dismissed the complaint without prejudice. On March 7, 2025, the plaintiff filed a second amended complaint. On March 14, 2025, the plaintiff filed an unopposed motion to stay the case, as Montana is currently considering legislation that would amend the challenged statute to remove the language at issue. According to the plaintiff, if passed, the bill would moot this case. On the same day, the court issued a one-page order granting the plaintiff’s motion to stay the case, pending the state legislature’s action on H.B. 215. The order also required the parties to file a status report within 14 days after the legislative session concludes.
    • Latest update: On May 16, 2025, Do No Harm filed a stipulation of dismissal on the basis that the Montana legislature had passed a law that repealed the challenged language. The court entered dismissal the same day.
  • Defending Education v. Sullivan et al., No. 1:25-cv-1572 (D. Colo. 2025): On May 19, 2025, a coalition of conservative advocacy groups filed a complaint against Colorado Attorney General Philip Weiser and members of the Colorado Civil Rights Commission, alleging that a recently passed Colorado law, House Bill 25-1312, violates the First and Fourteenth Amendments of the U.S. Constitution for allegedly “compelling speech” regarding gender identity. House Bill 25-1312 expands Colorado’s anti-discrimination laws to bar discrimination on the grounds of a person’s chosen name, pronouns, and other gender-affirming language. The plaintiffs allege that, because the law “expands the definition of ‘gender expression’ to include . . . speech based on an individual’s ‘chosen name,’” public accommodations in Colorado are liable if they refer to someone without using their chosen name, preferred pronouns, or other gender-affirming terms. The plaintiffs seek a declaratory judgment that the law violates the First and Fourteenth Amendments. On May 20, 2025, the plaintiffs moved for a preliminary injunction preventing the defendants from enforcing parts of the law. Among other things, the plaintiffs argue that violating or threatening a constitutional right is “always an irreparable harm.”
    • Latest update: The docket does not yet reflect that the defendants have been served.
  • Doe v. EEOC, No. 1:25-cv-01124 (D.D.C. 2025): On April 15, 2025, three law students, proceeding under pseudonyms, sued the EEOC, challenging the EEOC’s investigations into law firms’ demographic and diversity-related data. The plaintiffs allege that those investigations exceed the agency’s authority under Title VII, because they are not based upon a charge. The plaintiffs further claim that the EEOC’s investigation into law firms violates the Paperwork Reduction Act, because the EEOC did not undergo public comment or obtain approval from the Office of Management and Budget before posing “identical questions to the twenty firms.” The plaintiffs seek a declaratory judgment that Lucas and the EEOC exceeded their authority, an injunction barring the collection of sensitive information through improper means, and an order compelling Lucas and the EEOC to withdraw the investigative letters and return any information collected pursuant to those letters.
    • Latest update: On May 16, 2025, the plaintiffs filed an amended complaint, adding class allegations. The plaintiffs now seek to represent “[a]ll individuals whose names and other personal information are requested in EEOC’s investigative letters.”
  • Doe 1 v. Office of the Director of Nat’l Intel., No. 1:25-cv-00300 (E.D. Va. 2025): On February 17, 2025, 11 unnamed employees of the Office of the Director of National Intelligence and the Central Intelligence Agency sued their employers after they were placed on administrative leave from their DEI-related positions. They assert that the decision to place them on administrative leave violates the Administrative Leave Act, the Administrative Procedure Act, and the First and Fifth Amendments of the U.S. Constitution. On February 17, 2025, the plaintiffs moved for a temporary restraining order. The court held a hearing on the plaintiffs’ motion for a temporary restraining order on February 27, 2025. On March 27, 2025, the plaintiffs moved for a preliminary injunction preventing the defendants from terminating their employment, as well as the employment of similarly situated individuals. The plaintiffs argued that they are likely to succeed on their Fifth Amendment Due Process claim, they will suffer irreparable economic and reputational harm absent an injunction, the balance of hardships weigh in their favor, and an injunction will serve the public interest. They asked the court to (1) order the CIA Director to “personally review and reconsider his termination decisions”; (2) order the CIA Director and the Director of National Intelligence “to state why each individual termination somehow serves the national interest”; and/or (3) allow the plaintiffs and other similarly situated individuals to be considered for reassignment to positions in the Intelligence Community. On March 31, 2025, the court enjoined the defendants from “effectuating or implementing any decision to terminate the Plaintiffs without further Court authorization.” The court ordered the defendants to “provide Plaintiffs a requested appeal from any decision to terminate him or her” and to “consider any Plaintiffs’ request for reassignment for open or available positions in accordance with their qualifications and skills.” On May 6, 2025, the defendants filed a notice of appeal of the court’s preliminary injunction order.
    • Latest update: On May 16, 2025, the defendants filed a motion to stay the proceedings pending appellate review, arguing that it would be wasteful and duplicative to conduct briefing and discovery on substantive issues while the Fourth Circuit simultaneously considered them. On May 19, 2025, the court granted the defendants’ motion and stayed the proceedings pending resolution by the Fourth Circuit.
  • Nat’l Ctr for Pub. Policy Research, et al. v. SEC, No. 23-60230 (5th Cir. 2023): The petitioners, Kroger shareholders, previously sought to require Kroger to include in its proxy materials a proposal that Kroger must report on risks associated with omitting “viewpoint” and “ideology” from the list of protected characteristics in its equal opportunity policy. The SEC concluded that Kroger could exclude the proposal from its proxy materials. In April 2023, the petitioners sought judicial review of the SEC’s decision in the Fifth Circuit. On November 14, 2024, the Fifth Circuit denied the petitioner’s motion for stay pending appeal and granted the SEC’s motion to dismiss for lack of jurisdiction and mootness. The court found that Kroger chose to include the challenged measure in its proxy materials, which extinguished any live controversy on appeal. The court also held that it lacked authority to resolve the dispute because the SEC failed to issue an order concerning this matter, final or otherwise. On January 29, 2025, the petitioners filed a petition for a rehearing en banc.
    • Latest update: On May 14, 2025, the court denied the petition for rehearing.
  • Nat’l Urban League et al., v. President Donald J. Trump, et al., No. 1:25-cv-00471 (D.D.C. 2025): On February 19, 2025, the National Urban League, National Fair Housing Alliance, and AIDS Foundation of Chicago sued President Donald Trump challenging EO 14151, EO 14168, EO 14173, and related agency actions, as ultra vires and in violation of the First and Fifth Amendments and the Administrative Procedure Act. The plaintiffs allege that these orders penalize them for expressing viewpoints in support of diversity, equity, inclusion, accessibility, and transgender people. They also claim that, because of these orders, they are at risk of losing federal funding. The complaint seeks a declaratory judgment holding that the EOs at issue are unconstitutional, as well as a preliminary injunction enjoining enforcement of these EOs. On February 28, the plaintiffs filed a motion for a preliminary injunction. On May 2, 2025, the court denied the plaintiffs’ motion for a preliminary injunction. The court determined that the plaintiffs failed to establish standing to challenge provisions of the EOs that are intra-governmental and “not aimed at them.” For the remaining challenged provisions of the executive orders—including provisions mandating certification by government contractors that they do not operate unlawful DEI and terminating grants relating to DEI and gender ideology—the court concluded that the plaintiffs failed to show a likelihood that they would succeed on the merits.
    • Latest update: On May 20, 2025, the parties filed a joint motion to obtain leave for the plaintiffs to supplement their pleadings. The motion also proposed deadlines for the plaintiffs’ amendment, defendants’ response, and any motion to dismiss. The court granted the motion, setting forth deadlines for amendment and response to that amendment, as well as a briefing schedule for a motion to dismiss, should the defendants choose to file one.
  • National Education Association v. Department of Education, No. 1:25-cv-00091-LM (D.N.H. 2025): On March 5, 2025, the National Education Association and other groups, including the ACLU of New Hampshire, sued the U.S. Department of Education (“DOE”), alleging that the DOE’s letters to universities and colleges, threating to revoke federal funding for pursuing certain DEI programs, violated the First and Fifth Amendments of the U.S. Constitution and the Administrative Procedure Act. The challenged actions include the Department’s February 14, 2025 “Dear Colleague” letter, which purported to “clarify and reaffirm the nondiscrimination obligations of schools and other entities that receive federal financial assistance” and instructed educational institutions to “(1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race.” On April 24, 2025, the court granted the plaintiffs’ motion for a preliminary injunction, holding that the Dear Colleague letter is a “legislative rule” prescribing “new law and policy”—and not merely an “interpretive rule” providing guidance on existing law—because it imposes new, substantial obligations on schools. Accordingly, the court concluded that the plaintiffs were likely to succeed in their procedural challenge due to the Department’s failure to follow the procedural requirements that the APA imposes on legislative rules. The court also concluded that the Dear Colleague letter was likely impermissibly vague in violation of the Due Process Clause, and that the Frequently Asked Questions document “does not ameliorate” the letter’s vagueness “but rather, exacerbates it.” Finally, the court concluded that the agency actions likely violated the First Amendment by targeting speech based on viewpoint.
    • Latest update: On May 12, 2025, the plaintiffs filed an amended complaint, adding allegations that the Dear Colleague Letter and other DOE letters violate the Spending Clause of the U.S. Constitution because they exert “undue influence” by “attaching conditions to federal funds” that make them impermissibly coercive. The plaintiffs also added allegations that the Dear Colleague Letter and similar letters are unconstitutionally vague and ambiguous.
  • Young Americans for Freedom et al. v. U.S. Department of Education et al., No. 3:24-cv-00163-PDW-ARS (D.N. Dak. 2024): On August 27, 2024, the University of North Dakota Chapter of Young Americans for Freedom (“YAF”) sued DOE over its McNair Post-Baccalaureate Achievement Program, a research and graduate studies grant program that supports incoming graduate students who are either low-income first-generation college students or “member[s] of a group that is underrepresented in graduate education.” YAF alleges that the McNair program violates the Equal Protection Clause by restricting admission based on race. YAF requests, among other things, a preliminary injunction enjoining the DOE from enforcing all race-based qualifications for the McNair program. On December 31, 2024, the court denied the plaintiff’s preliminary injunction motion and dismissed the case without prejudice for lack of subject matter jurisdiction, ruling that there was no Article III standing because the McNair Program is not exclusively administered by the Department of Education. On January 24, 2025, the plaintiffs filed a motion to alter or amend the judgment arguing that the court should have allowed the plaintiffs to amend their complaint instead of dismissing the case outright. On March 10, 2025, DOE filed an opposition to the plaintiffs’ motion for reconsideration, arguing that the plaintiffs failed to identify any “manifest error of fact or law” in the court’s decision or demonstrate exceptional circumstances warranting relief.
    • Latest update:On May 6, 2025, the court denied the plaintiffs’ motion for reconsideration of its dismissal.

3. Actions against educational institutions:

  • De Piero v. Pennsylvania State University, No. 2:23-cv-02281 (E.D. Pa. 2023): A white male professor sued his employer, Penn State University, claiming that university-mandated DEI trainings, discussions with coworkers and supervisors about race and privilege in the classroom, and comments from coworkers about his “white privilege” created a hostile work environment that led him to quit his job. He claimed that after he reported this alleged harassment and published an opinion piece objecting to the impact of DEI concepts in the classroom, the university retaliated against him by investigating him for bullying and aggressive behavior towards his colleagues. The plaintiff alleged harassment, retaliation, and constructive discharge in violation of Title VI, Title VII, Section 1981, Section 1983, the First Amendment, and Pennsylvania civil rights laws. The parties filed cross-motions for summary judgment. On March 6, 2025, the court granted summary judgment to the university on the plaintiff’s hostile work environment claims. The court found that the behaviors complained of by the plaintiff, including “campus wide emails” pertaining to racial injustice, “being invited to review scholarly materials,” and “conversations about harassment levied by and against [the plaintiff],” could not reasonably be found to rise to the level of severe harassment. As to the “pervasive” conduct prong, the court explained that of the 12 incidents in the complaint, no “racist comment” was directed at the plaintiff and “only a few” involved actions that were directed at the plaintiff at all. On March 20, 2025, the plaintiff filed a supplemental brief in support of his remaining claims, arguing that these claims should proceed to trial. He presented what he asserted were undisputed facts to support his claims, including that he was reported for “micro aggressions” after objecting to racial harassment, that colleagues lodged false claims against him, and that he faced retaliatory disciplinary action and salary claw backs. On March 27, 2025, the university filed its own supplemental brief in support of summary judgment, arguing that the plaintiff’s putative Title VII and PHRA retaliation claims failed as a matter of law because the plaintiff cannot prove the university took adverse employment action against him, or there is no causal link between his alleged protected activity and adverse actions taken by the university. On April 17, 2025, the court granted summary judgment for the university on the plaintiff’s remaining retaliation claims, concluding that none of the alleged acts by the university constituted adverse employment action.
    • Latest update: On May 15, 2025, the plaintiff filed a notice of appeal as to the orders granting the university’s motions for summary judgment.
  • 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.
    • Latest update: 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.

4. Title VI Discrimination:

  • Do No Harm v. American Chemical Society, No. 1:25-cv-0638 (D.D.C. 2025): On March 5, 2025, Do No Harm filed a suit against The American Chemical Society (“ACS”) in the U.S. District Court for the District of Columbia. The complaint alleges that ACS operates a program for Black, Hispanic, and indigenous applicants (“the ACS Scholars Program”) that excludes white and Asian applicants, thereby violating federal anti-discrimination laws. Do No Harm argues that the program’s racial criteria are not narrowly tailored to serve a compelling interest and that the ACS, as a recipient of federal financial assistance, is subject to Title VI’s prohibition against racial discrimination. Do No Harm seeks declaratory and injunctive relief, as well as nominal damages.
    • Latest update: On May 7, 2025, the parties jointly stipulated to dismiss the case, on the grounds that the defendant had terminated the ACS Scholars Program and would replace it with a scholarship program that does not consider race or ethnicity in selecting applicants.

Legislative Updates

On February 4, 2025, U.S. Representative Michael Cloud (R-TX) introduced House Bill 925, the “Dismantle DEI Act of 2025.” If passed, this bill would limit DEI-related initiatives in federal agencies by prohibiting federal funds from being made available to DEI-related activities in any federal agency, closing any agency office related to DEI, prohibiting trainings related to DEI, and repealing or amending various statutes and Executive Orders related to diversity. For example, the bill would repeal 12 U.S.C. § 4520, which established requirements for “minority and women inclusion” in regulated financial entities. The bill would also prohibit federal contracts exceeding $10,000 in value from being executed with any contractor “who is subject to, or required to comply with, a prohibited diversity, equity or inclusion practice.” It would also prohibit federal agencies from providing any grants without an agreement by the recipient that the funds will not be used for any DEI-related purpose. The bill would also amend the Civil Rights Act of 1964 to define “prohibited diversity, equity, or inclusion practice[s]” as including “requiring as a condition of employment, as a condition for promotion or advancement, or as a condition for speaking, making a presentation, or submitting written materials, that an employee undergo training” or sign or otherwise assent to a “statement, code of conduct, work program, or plan, or similar device” that asserts that “a particular race, color, ethnicity, religion, sex, or national origin is inherently or systemically oppressive or oppressive, or privileged or unprivileged.”

On May 8, 2025, the Texas State Senate passed and sent to the state House Senate Bill 2337, a bill that would require shareholder proxy advisors to make certain disclosures if the proxy advisors recommend shareholder votes based “wholly or partly” on factors other than “the financial interest of the shareholders of a company.” Factors defined as outside “the financial interest” include DEI or ESG goals, factors, or investment principles. Proxy advisors whose recommendations incorporate these factors would be required to make, among other disclosures, a “conspicuous disclosure” that the recommendation is “not being provided solely in the financial interest of the company’s shareholders.” The bill would also require certain disclosures if a proxy advisor recommended voting on a shareholder proposal in a way that differs from “the voting recommendation of the board of directors or a board committee composed of a majority of independent directors.” The bill would render violation of the disclosure rules an unlawful deceptive trade practice, and would permit affected parties to seek both declaratory and injunctive relief.

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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