On April 24, the U.S. District Court for the District of Columbia issued a preliminary injunction blocking the enforcement of a certification requirement from the U.S. Department of Education that threatens schools with a loss of federal funding based on harmful misinterpretations of civil rights laws, threatening Black students’ equal access to a quality education.
The Legal Defense Fund (LDF) filed the lawsuit on behalf of National Association for the Advancement of Colored People, for whom the preliminary injunction was an initial victory.
The court order does not prevent the administration from enforcing Title VI independent of the paperwork.
The lawsuit is one in a series of pleas for relief from the administration’s interpretation of civil rights law. The government, armed with a recent Supreme Court ruling, argued “policies that classify on the basis of race are not lawful unless narrowly tailored to achieve a compelling interest.”
The merits of three cases have been preliminarily validated in court. A fourth was filed by 19 states, including the Commonwealth of Massachusetts, that refused to certify compliance.
The states argue that the April 3 certification form constitutes “illegal punishment for not acceding to an agenda to eliminate diversity, equity, and inclusion of any kind in schools.”
The NAACP’s successful arguments in court map the legal terrain for adjudicating these disputes.
Their memo contained rhetorical haymakers: The government is “attempting to suppress” ideas about “systemic racism and racial inequality”; its actions “evince racially discriminatory intent by trafficking in pernicious stereotypes”; and its terminology acts “as pejorative dog whistles.”
Those arguments largely whiffed. Where the legal blows landed, NAACP lawyers simply showed that the disputed actions deviated from established Supreme Court precedent.
In 1972, the nation’s top court held that government actions could be “void for vagueness” if a “person of ordinary intelligence” is not given “a reasonable opportunity to know what is prohibited.”
Further defined in 2012, “The Fifth Amendment vagueness doctrine,” the federal district judge explained, involves whether affected subjects “know what is required of them so they may act accordingly” and enough “precision and guidance” for anyone enforcing laws to avoid acting arbitrarily or discriminatorily.
The NAACP argued that the government hasn’t defined key terms: racial considerations, race-based decision-making, racial preference and race consciousness.
“Each is a term of art,” their memo stated, that is simultaneously used for practices addressed “by relevant case law or much more broadly to [describe] any program or policy that is meant to increase equity or opportunity for people of color.”
The government argued any “vagueness issue” was “easily resolved” with one core question: Does an action treat people of one race differently than another?
“Differential treatment based on race,” they argued, is “a type of conduct that Title VI prohibits” and “is not vague.”
Many DEI programs, the government contends, introduce “explicit race-consciousness into everyday training, programming, and discipline.” DEI is, therefore, “susceptible to discriminating based on race.”
The judge agreed with the NAACP. “The challenged documents provide … no clear ‘boundaries of the forbidden areas,’” he wrote. He found no “actionable definition of what constitutes ‘DEI’” nor any way to “delineate between a lawful DEI practice and an unlawful one.” In part, because enforcement would depend “on the facts and circumstances of each case.”
“Moreover, the certification requirement goes beyond merely articulating general guidance on legal educational offerings,” the judge wrote. “Non-compliance with the administration’s interpretation of unlawful DEI will result in liability.”
That elevates the importance of clarity. “Threatening penalties… without sufficiently defining the conduct that might trigger liability,” the judge ruled, “violates the Fifth Amendment’s prohibition on vagueness.”
The Fifth Amendment requires due process of law.
That connection between paperwork and penalties helped the plaintiff “establish an injury-in-fact.”
An injury-in-fact, along with showing the challenged action caused the injury and that a favorable decision will likely provide redress, are “irreducible elements” of legal standing, the judge stated.
The connection is also unique. “As the government conceded in the preliminary injunction hearing, it is aware of no other comparable certification” of a material condition for federal funding, the judge wrote.
In some school districts, the damage is done. The NAACP argued that “many school districts rushed to indiscriminately cancel programming to comply,” the judge recounted.
“As a result, students have lost access to programming, curricular offerings, and other initiatives, some of which undoubtedly constitute protected speech.”
The NAACP suit will be followed by the combined forces of 19 state attorneys general. California, Illinois, New York, Massachusetts and Minnesota are leading the coalition.
“Every student has the fundamental right to learn in an environment that is welcoming and open to everyone,” said New York Attorney General Letitia James.
“I proudly stand with my fellow attorneys general to defend this important funding and help ensure that all children have access to a quality public education,” said Illinois Attorney General Kwame Raoul.
“Diversity, equity, and inclusion initiatives are legal efforts that help students feel safe, supported and respected,” said Massachusetts Attorney General Andrea Joy Campbell.
“The U.S. Department of Education is unapologetically abandoning its mission to ensure equal access to education with its latest threat to wholesale terminate congressionally mandated education funding,” said California Attorney General Rob Bonta.
“Minnesotans believe that every child has the right to learn in an environment that is safe, supportive, and inclusive,” said Attorney General Keith Ellison of the North Star State.
The 19-state lawsuit was filed in the U.S. District Court for the District of Massachusetts on April 25.
Leave a Reply
You must be logged in to post a comment.