DEI Task Force Update (May 5, 2025)
Diversity | May 5, 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 May 2, Judge Beryl Howell of the U.S. District Court for the District of Columbia permanently enjoined enforcement of Executive Order 14230, which, among other things, ordered federal agencies to suspend security clearances for employees of the law firm Perkins Coie, restrict their access to federal buildings, restrict communications by government officials with Perkins lawyers and employees, terminate government contracts with the law firm, and review the government contracts of Perkins Coie’s clients, and directed the Acting Chair of the EEOC to investigate the DEI practices of large law firms. In a 102-page order, the Court denied the government’s motion to dismiss the complaint, granted Perkins Coie’s motion for summary judgment, and concluded that the EO “violates the Constitution and is thus null and void.” The Court observed that, “[n]o American president has ever before issued executive orders like the one at issue,” adding, “In purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’ . . . Eliminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”
The Court held that the EO violates the First Amendment by retaliating against the law firm for protected activity—specifically, the firm’s statements and viewpoint in favor of DEI as well as its association with and advocacy on behalf of the President’s opponents in the 2016 and 2020 elections. The Court also held that the EO violates the firm’s clients’ Fifth and Sixth Amendment right to counsel and First Amendment associational rights, denies the firm Equal Protection, and violates Due Process. The Court also invalidated the EO as void for vagueness, in part because the EO directs adverse action against Perkins Coie purportedly in response to the firm engaging in illegal discrimination through its DEI policies, without explaining which of the firm’s policies violate the law or otherwise clarifying what conduct of Perkins Coie’s is unlawful. The Court noted “The terms diversity, equity, and inclusion . . . could refer to a wide range of actions and programs, formal or informal, as well as basic thoughts and beliefs. The Order provides no definition or guidance as to what form of program possibly described by these terms is considered unlawful discrimination by the Trump Administration, leaving plaintiff to guess at what is and is not permissible in the government’s view, while already facing the threat of adverse actions during the guessing.” The government identified two alleged acts of illegal discrimination in which Perkins Coie engaged: (1) participating in the Sponsors for Education Opportunity (“SEO”) summer fellowship program and (2) adopting the “Mansfield Rule.” The Court rejected the government’s arguments as to both, reasoning that (a) the firm’s summer fellowship was “open to all” and does “not contain discriminatory requirements,” and (b) the Mansfield Rule “does not establish any hiring quotas or other illegally discriminatory practices, requiring only that participating law firms consider attorneys from diverse backgrounds for certain positions.” The Court concluded that neither was evidence of unlawful discrimination.
With respect to the EO’s provision directing the Acting Chair of the EEOC to “review the practices of representative large, influential, or industry leading law firms,” the Court said that “no authority is identified by the government—and the Court is aware of none—empowering the President to direct the EEOC to target specific businesses or individuals for an investigation,” and that the EEOC’s investigative authority is generally limited to formal charges filed with the agency. Addressing specifically the investigative letter the EEOC sent Perkins Coie requesting information about its hiring and employment practices, the Court held that “By not following its own procedures, the EEOC has undermined the legitimacy of its own investigation, revealing this investigation . . . to be a product of the retaliation ordered by EO 14230 rather than any legitimate investigative activity.”
On April 23, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy,” seeking to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” The executive order directs the repeal or amendment of certain regulations that impose disparate-impact liability on recipients of federal funding under Title VI, such as universities, nonprofits, and certain contractors. It also directs the Attorney General, “in coordination with the heads of all other agencies,” to review “all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements,” and to “detail agency steps for their amendment or repeal.” The order likewise directs all federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” This would include Title VII, the Fair Housing Act, the Age Discrimination in Employment Act, the Affordable Care Act, and the Equal Credit Opportunity Act. Finally, the executive order instructs all heads of federal agencies to “assess” or “evaluate” all pending proceedings relying on disparate-impact theories and “take appropriate action” within 45 days, and to conduct a similar review of “consent judgments and permanent injunctions” within 90 days. For more analysis on this executive order, please see our April 25 client alert.
On April 24, 2025, federal district courts in New Hampshire, Maryland, and Washington D.C. granted preliminary injunctions in three separate cases challenging recent actions by the U.S. Department of Education in relation to DEI. 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.” The cases also challenge the Department’s February 28 guidance document entitled “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act,” which addressed a range of issues relating to DEI initiatives in educational institutions, including by providing examples of DEI programming that the Administration might find discriminatory. Finally, the cases challenge the Department’s April 3, 2025 letter requiring state and local officials to certify their compliance with the administration’s interpretation of Title VI in relation to DEI. For more information on these agency actions, please see our February 19, March 5, and April 21 Task Force Updates.
The plaintiffs in these three lawsuits challenged the Department’s actions under the First and Fifth Amendments, as well as the Administrative Procedure Act (“APA”). While all three courts granted the plaintiffs’ preliminary injunction motions, each ruled on different—and at times, conflicting—grounds.
In American Federation of Teachers, et al. v. Department of Education, et al., 1:25-cv-00628 (D. Md. 2025), Judge Stephanie Gallagher concluded that the Dear Colleague letter constitutes a “legislative rule” prescribing “new law and policy”—and not merely an “interpretive rule” providing guidance on existing law—because it extends the existing reach of Title VI, substantively alters the legal landscape, and has the force and effect of law. Accordingly, Judge Gallagher concluded that the plaintiffs were likely to succeed in their procedural challenge to the Dear Colleague letter because the Department failed to follow the procedural requirements for legislative rules as set forth in the APA. Judge Gallagher also concluded that the Dear Colleague letter likely violated the APA because the Education Department likely exceeded its statutory authority, failed to explain its change of position, failed to produce any facts to support its position, failed to consider the reliance interests of educators, and acted arbitrarily and capriciously in publishing the letter. Judge Gallagher also concluded that the Dear Colleague letter likely violated the First Amendment by preemptively prohibiting speech. The court declined to enjoin the letter establishing a certification requirement because the plaintiffs had not adequately challenged it in their complaint.
In National Education Association, et al. v. Department of Education, et al., 1:25-cv-00091 (D.N.H. 2025), Judge Landya McCafferty similarly held that the Dear Colleague letter is a legislative rule because it imposes new, substantial obligations on schools. Accordingly, Judge McCafferty 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. Judge McCafferty 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.” Judge McCafferty also concluded that the agency actions likely violated the First Amendment by targeting speech based on viewpoint.
In NAACP v. U.S. Department of Education, et al., 1:25-cv-01120 (D.D.C. 2025), by contrast, Judge Dabney Friedrich concluded that the challenged Department actions were not legislative rules but rather interpretive rules intended to provide guidance on existing obligations, rather than impose new obligations. Accordingly, Judge Friedrich concluded that they did not violate the APA’s procedural requirements, nor were they arbitrary and capricious or contrary to law. Judge Friedrich also concluded that the plaintiffs lacked standing to challenge the agency’s actions on First Amendment grounds. However, she agreed with the other courts in finding that agency actions were likely void for vagueness under the Fifth Amendment because they “fail[ed] to provide an actionable definition of what constitutes ‘DEI.’” Judge Friedrich also concluded that the “shortened timeframe for certifying compliance further exacerbate[d] vagueness concerns.”
On April 21, 2025, Harvard University sued to prevent the freezing of more than $2 billion in federal funding to the university after it refused to comply with policy change demands from the Trump Administration. Naming as defendants numerous federal officials and agencies, the complaint alleges violations of the First Amendment and the Administrative Procedure Act, as well as an unconstitutional exercise of executive authority under Article II of the U.S. Constitution. Harvard argues that the Administration’s actions—including the demand that Harvard discontinue all DEI practices—are unconstitutional government interference with a private actor’s speech. The funding freeze, Harvard argues, is an unlawful use of legal sanction by the Administration seeking to suppress disfavored speech. Harvard also alleges that the Administration violated the APA by failing to follow the prescribed procedures under Title VI before revoking federal funding based on discrimination concerns. Harvard asks the court to undo the funding freeze and declare it unconstitutional.
On April 21, the National Institutes of Health (“NIH”) issued guidance stating that recipients of NIH grant funding must not “operate any programs that advance or promote DEI, DEIA, or discriminatory equity ideology in violation of Federal anti-discrimination laws.” Relatedly, the National Science Foundation (“NSF”) announced on April 18 a shift in funding priorities, including that “[r]esearch projects with more narrow impact limited to subgroups of people based on protected class or characteristics do not effectuate NSF priorities.” In its announcement, NSF also stated that “[r]esearchers may recruit or study individuals based on protected characteristics when doing so is (1) intrinsic to the research question (e.g., research on human physiology), (2) not focused on broadening participation in STEM on the basis of protected characteristics, and (3) aimed to fill an important gap in [science and engineering] knowledge. For example, research on technology to assist individuals with disabilities may be supported even when the research subject recruitment is limited to those with disabilities.”
Media Coverage and Commentary:
Below is a selection of recent media coverage and commentary on these issues:
- New York Times, “‘Vaguely Threatening’: Federal Prosecutor Queries Leading Medical Journal” (April 25): Teddy Rosenbluth of the New York Times reports that the interim U.S. Attorney for the District of Columbia, Ed Martin, has sent letters to various medical and scientific journals, including the New England Journal of Medicine, regarding their selection of papers for publication. According to Rosenbluth, the letters suggest the publications are “partisan in various scientific debates” and ask whether the journals “accept submissions from scientists with ‘competing viewpoints,” what they do if authors “may have misled their readers,” and whether they are “transparent about influence from ‘supporters, funders, advertisers, and others.’” The letters also ask what role the NIH plays “in the development of submitted articles.” Rosenbluth reports that it is “unclear how many journals have received these letters or the criteria that Mr. Martin used to decide which publications to target.”
- NPR, “Trump Signs Executive Actions on Education, Including Efforts to Rein in DEI,” April 24): NPR’s Elissa Nadworny reports on a series of executive actions taken by the White House on April 23 aimed at educational institutions and relating to DEI. The first instructs Secretary of Education Linda McMahon to “overhaul” the college accreditation system and recognize new accreditors. The second provides that universities may lose federal grants unless they complete “full and timely disclosures of foreign funding.” The third calls for changes in disciplinary policies in K-12 schools, including by prohibiting use of “racially preferential discipline practices” and abandonment of disparate impact analyses of discipline.
- Law.com, “Companies Toning Down ‘DEI’ References but Not Necessarily Ditching It, Analysis Reveals” (April 24): Law.com’s Chris O’Malley reports on an analysis of financial reports from 10 leading S&P 500 companies which found that companies are “‘recalibrating’ how they present diversity, equity and inclusion in their regulatory filings.” The study found a “measurable decline in explicit DEI mentions” in these reports. Nevertheless, “substantive commitments persist through neutral phrasing,” including “diversity of thought” and “global workforce composition.” Moreover, O’Malley notes that the study found some exceptions to the trend exist, including major companies with unchanging usage of DEI-related language in their reports year over year.
- Law360, “How Proxy Advisory Firms Are Approaching AI And DEI” (April 21): Writing for Law360, Javier Ortiz, Geoffrey Liebmann, and Trevor Lamb report that proxy advisory firms Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co. LLC (“Glass Lewis”) have both issued updated proxy voting policy guidelines relating to DEI. ISS will cease to consider the gender, racial, or ethnic diversity of a company’s board when making voting recommendations for the election or re-election of directors at U.S. companies. Glass Lewis, by contrast, will continue to recommend votes against nominating committee members for companies where Glass Lewis believes the board lacks sufficient diversity. However, Glass Lewis will inform clients when its recommendation concerns diversity, and it will provide two recommendations in those instances, including one that excludes gender or community diversity considerations. Glass Lewis will apply the same policy to shareholder proposals. For more information, please see our February 2025 client alert.
Case Updates:
Below is a list of updates in new and pending cases:
1. Challenges to statutes, agency rules, and regulatory decisions:
- American Alliance for Equal Rights v. Ivey, 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.”
- Latest update: 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.
- 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
- Latest update: 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.
- 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.
- Latest update: 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.
- 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, and 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.
- Latest update: 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.
2. Employment discrimination and related claims:
- Beneker v. CBS Studios, Inc., et al., No. 2:24-cv-01659 (C.D. Cal. 2024): On February 29, 2024, a heterosexual, white male writer sued CBS, alleging that the company’s de facto hiring policy discriminated against him on the bases of sex, race, and sexual orientation. In his complaint, the plaintiff alleges that CBS violated Section 1981 and Title VII by refusing to hire him as a staff writer on the TV show “Seal Team,” instead hiring several black writers, female writers, and a lesbian writer. The plaintiff sought a declaratory judgment that CBS’s de facto hiring policy violates Section 1981 and Title VII, an injunction barring CBS from continuing to violate Section 1981 and Title VII, an order requiring CBS to offer the plaintiff a full-time producer job, and damages. CBS moved to dismiss the complaint on June 24, 2024, arguing that the First Amendment protects its hiring choices and that two of the plaintiff’s Section 1981 claims were untimely.
- Latest update: On April 18, 2025, the parties filed a joint stipulation to dismiss the case with prejudice, with each party bearing its own costs. The stipulation did not reveal whether the parties entered into a settlement agreement. The court ordered the case dismissed with prejudice on April 21, 2025.
3. Contracting claims under Section 1981, the U.S. Constitution, and other statutes:
- Do No Harm v. Nat’l Assoc. of Emergency Medical Technicians, No. 3:24-cv-00011 (S.D. Miss. 2024): On January 10, 2024, Do No Harm challenged the diversity scholarship program operated by the National Association of Emergency Medical Technicians (“NAEMT”), an advocacy group representing paramedics, EMTs, and other emergency professionals. NAEMT awards up to four $1,250 scholarships annually to students of color hoping to become EMTs or paramedics. Do No Harm requested a temporary restraining order, preliminary injunction, and permanent injunction to prevent the continued operation of the program. On January 23, 2024, the court denied Do No Harm’s motion for a TRO, and NAEMT moved to dismiss Do No Harm’s amended complaint on March 18, 2024. On March 31, 2025, the court denied the defendants’ motion to dismiss, finding Do No Harm had standing and plausibly alleged a prima facie Section 1981 violation.
- Latest update: On April 17, 2025, the parties filed a joint stipulation of dismissal, indicating that the defendant will “revise” its scholarship program to remove eligibility requirements and preferences based on race or ethnicity.
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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