By: Alejandra Gutierrez
On January 21, 2026, the Trump Administration abandoned its appeal in a case before the Fourth Circuit regarding the Department of Education’s anti-diversity, equity, and inclusion (DEI) guidance.[1] In American Federation of Teachers v. Department of Education,[2] a federal district court for the District of Maryland held that the Trump administration’s Dear Colleague letter and certification requirement are unlawful, both because the procedures for adopting them violated the Administrative Procedure Act (APA) and because the actions “run afoul of important constitutional rights[,]” in particular, those of the First and Fifth Amendments.[3]
In addition to procedural violations related to the APA, the District Court found that the Department of Education’s letter to universities violates the First Amendment because it targets classroom speech, including curricular discussions of certain topics that the Department disagrees with, such as structural racism.[4] In addition, the Court found that the letter violates the Fifth Amendment because its subjective and discretionary judgments are unconstitutionally vague, thus depriving recipients of the protection of due process.[5] The threat of sanctions for what the letter calls “illegal conduct” heightens these constitutional issues.[6]
In addition to higher education institutions, businesses have also received threats about their perceived DEI policies from the Trump administration.[7] Most recently, on February 4th, the Equal Employment Opportunity Commission (EEOC) revealed an investigation against Nike and filed a motion to compel the company to respond to a subpoena.[8] Even before Nike’s investigation, many businesses have reacted to the anti-DEI climate and threat of government action by making changes, including amending their practices or renaming their perceived-DEI-related programs.[9] Some of these firms include Amazon, Google, IBM, Meta, and other cross-industry giants.[10]
The District Court’s constitutional analysis applies to the executive branch’s efforts to intimidate private businesses, too. Similar to the “Dear Colleague” letter, guidance from the Department of Justice (DOJ) from July 2025 to any recipients of federal funding (e.g., NGOs, businesses, and others) follows a similar pattern.[11] The memorandum indicates that certain practices—like “‘Cultural Competence’ Requirements[,]” “‘Overcoming Obstacles’ Narratives or ‘Diversity Statements[,]’” and “Race-Based Training Sessions”—may violate civil rights laws.[12] Targeting training programs for their race-related content is similar to targeting school curricula for their race-based discussions. Similarly, the memorandum “urge[s]” entities to review their programs to “avoid[] legal pitfalls”—which is similar to the threat that the universities received in the Dear Colleague letters.[13] For these reasons, the District Court’s constitutional analysis may apply equally to the entities that this memorandum targets.
Recent litigation regarding President Trump’s actions against big law firms supports the conclusion that the administration is struggling to defend its anti-DEI efforts. In March of 2025, the Trump administration issued an executive order targeting a law firm, Perkins Coie LLP, for its perceived discrimination under diversity, equity, and inclusion policies.[14] As a consequence of the firm’s DEI programs, the Trump administration ordered the government to review the firm’s security clearances and terminate any contracts in which Perkins Coie was involved.[15] In response, Perkins Coie filed a lawsuit seeking an injunction against the executive order and won summary judgment in May 2025.[16] The District Court for the District of Columbia similarly found that the executive order was unconstitutional because, among other issues, it retaliated against Perkins Coie for its First Amendment-protected activity.[17] The case is now set to go before the D.C. Circuit Court.[18] This victory for a major law firm, combined with the fact that the Trump administration dropped its appeal before the Fourth Circuit in the higher education case, suggests that the administration may be changing its anti-DEI strategy in the face of multiple district courts’ negative assessments of the legality of such efforts.
[1] Christa Richer Cook, Trump Administration Drops Appeal to Defend Dear Colleague Letter on DEI – Implications for Higher Education Institutions, Bond, Schoeneck, & King PLLC (Jan. 26, 2026), https://www.bsk.com/higher-education-law-report/trump-administration-drops-appeal-to-defend-dear-colleague-letter-on-dei-ndash-implications-for-higher-education-institutions [https://perma.cc/8CSX-HDN8].
[2] 796 F. Supp. 3d 66 (D. Md. 2025).
[3] Id. at 4.
[4] Id.at 55–56.
[5] Id. at 63–64.
[6] Id. at 66.
[7] See, e.g., Nathaniel Meyersohn, The Trump Administration Has a New Way to Pressure Companies to Ditch DEI, CNN Bus. (Mar. 26, 2025, at 07:30 ET), https://www.cnn.com/2025/03/26/business/dei-fcc-media [https://perma.cc/4KYM-97U5] (reporting that Federal Communications Commission chair, Brendan Carr, stated that “[a]ny businesses that are looking for FCC approval, I would encourage them to get busy with ending any sort of their invidious forms of DEI discrimination”).
[8] Rebeca Davis O’Brien & Kim Bhasin, Nike, Accused of Bias Against White Workers, Is Under Federal Investigation (Feb. 4, 2026), https://www.nytimes.com/2026/02/04/business/eeoc-nike-white-employee-discrimination.html [https://perma.cc/2HBH-MKZM].
[9] Jessica Guynn, These Are the Companies That Rolled Back DEI Amid Trump Backlash, USA Today (Dec. 9, 2026, at 05:04 ET), https://www.usatoday.com/story/money/2025/12/09/trump-dei-rollback-list-backlash/87457060007/ [https://perma.cc/656T-FFEU] (describing the ways that companies have altered their policies, programming, and initiatives related to diversity, equity, and inclusion).
[10] Id.
[11] See Memorandum from the Off. of the Att’y General on Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination to All Fed. Agencies 1 (July 29, 2025), https://www.justice.gov/ag/media/1409486/dl?inline=&utm_medium=email&utm_source=govdelivery [https://perma.cc/VNJ4-3XAF].
[12] See id. at 5.
[13] Id. at 1, 9.
[14] See Addressing Risks from Perkins Coie LLP, The White House (Mar. 6, 2025), https://www.whitehouse.gov/presidential-actions/2025/03/addressing-risks-from-perkins-coie-llp/ [https://perma.cc/F43H-ZVKP].
[15] Id. (“[Perkins Coie LLP’s] disrespect for the bedrock principle of equality represents good cause to conclude that they neither have access to our Nation’s secrets nor be deemed responsible stewards of any Federal funds.”)
[16] Protecting Our Firm and Safeguarding the Interests of Our Clients, Perkins Coie LLP, https://www.perkinscoiefacts.com/ [https://perma.cc/LZ4D-88PA] (last visited Jan. 31, 2026).
[17] Perkins Coie, LLP v. U.S. Dep’t of Just., No. 1:25-cv-00816-BAH, at 52 (D.D.C. May 2, 2026), https://www.courthousenews.com/wp-content/uploads/2025/05/beryl-howell-perkins-coie-summary-judgment-opinion.pdf [https://perma.cc/Z2GP-LBK2].
[18] See Perkins Coie LLP, supra note 16.
