. . . We write to register our strong objection to the proposed repeal, which is not required by law and would compromise the ABA’s professed commitment in Goal III, adopted by the ABA House of Delegates in 2008, to “eliminate bias and enhance diversity” in the legal profession and justice system. We call on the Council not to capitulate but to instead stand up for the rule of law and for principles and rights of inclusion and diversity.

Position Statement

The proposed repeal of Standard 206 does not occur in a vacuum.² It arises squarely within a broader political campaign to reshape higher education governance, accreditation, and civil rights enforcement in ways that disfavor historically marginalized communities. In the educational sphere, the federal government has advanced policy agendas designed to curtail institutional autonomy, weaken nondiscrimination commitments, and restrict the very forms of academic programming that support equal access.

One prominent example is the misnamed Compact for Academic Excellence in Higher Education, circulated by the Trump administration in 2025. It sought to condition federal funding on institutions’ agreement to eliminate diversity, equity, and inclusion initiatives, restrict academic programming, and accept expanded federal oversight of curriculum and governance.³ Although nearly all colleges and universities rejected the Compact, its core proposals continue to influence policy debates, including this current effort to repeal Standard 206.⁴ For this reason, academic organizations in higher education warn that the Compact reflects an effort to narrow institutional autonomy and weaken nondiscrimination commitments.⁵ Project 2025 similarly outlines recommended federal actions that would restructure accreditation, limit institutional governance, and narrow civil‑rights enforcement in education to reshape higher education by weakening or eliminating diversity‑related standards.⁶ Against this background, the move to now rescind Standard 206—not because law requires it, but instead as an extraordinary, discretionary departure from longstanding accreditation practice—risks aligning the ABA’s accreditation system with political agendas that undermine the legal profession’s core commitments and signals acquiescence to efforts that disparage principles of equal justice, weaken academic freedom, and erode nondiscrimination protections at the very moment when these commitments require not capitulation but instead the strongest possible defense.

As detailed below, our primary objection to the proposed repeal of Standard 206 in this political moment is steeped in the critical history of the origins of the ABA and the legal profession. This history reveals that:

1. The construction and engineering of the legal profession was and is purposefully nondiverse—intentionally structured as an exclusive elite white male preserve.

2. Standard 206 was and is a modest measure necessary to aid in the repair of this overt and intentional past discrimination.

3. Current U.S. law continues to support diversity policies such as those embodied in Standard 206, despite ongoing political pressure to eliminate it.

We further explain in this public comment that:

4. Standard 206 mandates an inclusionary framework in legal education that includes but goes beyond race; and

5. Standard 206 provides a risk-mitigating framework that facilitates compliance with federal, state, and the ABA Council’s own commitment to nondiscrimination (Standard 205), academic freedom (Standards 208 and 405), and cultural competency instruction (Standard 303(c)); the elimination of which undermines these other standards, to the detriment of legal education.

For these reasons, we urge the Council not to rescind Standard 206, but instead to expand and strengthen it.

I. Addressing a Legacy of Exclusion: The ABA’s Obligation to Repair Through Accreditation Standards

Our objection to the proposed repeal of Standard 206 is steeped in the critical history of the ABA and the legal profession—a history that reveals the construction and engineering of a profession that was and is purposefully nondiverse and intentionally structured as an exclusive elite white male preserve. Against this background, we contend that Standard 206 should be viewed as contributing to the necessary redress owed to a society that is and has always been multiracial, multiethnic, and in many other ways diverse. This redress is more importantly owed to those belonging to traditionally excluded groups who continue to suffer barriers to accessing the legal profession due largely to structural and institutional barriers that trace back to the ABA’s exclusionary policies and practices a century ago.

Notably, the ABA first created diversity standards to address structural inequality against people of color and women around 1981 when it came under pressure from civil rights groups as well as the federal government in reaction to the overwhelming white, male composition of law school students. The initial diversity standard covered law students only but was later extended in 1996 to include faculty and staff. Standard 206 has stood since as a modest device to move us toward a diverse profession.

Standard 206’s commitment to diversity is not about diversity just for diversity’s sake. Rather, a diverse legal profession is crucial to the preservation of the rule of law and democracy, and to the protection, representation, and advancement of diverse groups in society. Moreover, it serves the cause of equal justice. All of these goals are integral to our national identity and interests, and the core principles of our shared profession. Here, Standard 206 must be understood as not merely aspirational but rather remedial in scope and intent. As explained next, the standard directly responds to “specific, identified instances of past discrimination” that the ABA itself was directly responsible for, which gives rise to permissible attention to race (through Standard 206) as a lawful remedy.⁷

A. The ABA’s Early Regime of Exclusion: A Historical Account of Racial and Identity-Bound Barriers Born in Bigotry and Discrimination

Critical theory teaches the importance of documenting and retelling origin stories of present systems whose processes and principles through the passage of time otherwise appear to be normalized. In the context of ABA accredited law schools, that historical excavation by legal scholars has revealed a since forgotten intentional plan and structure to exclude certain law students,⁸ and therefore lawyers from the legal profession, on the basis of such identity grounds as race, national origin, religion, and economic class.⁹ As legal scholar Daria Roithmayr recounts that origin story, an alliance between elite law firms and prestigious East Coast law schools in the late 19^th and early 20^th century led to the formation of the ABA to take out educational alternatives that competed with the preserve of white male elites. That campaign had two prongs: namely, the elimination of pathways that served immigrants and African Americans, and the imposition of the case law method of legal education. She explains:

As Roithmayr details, the ABA origin story is one of exclusion on the basis of identity to ensure the desired composition of the attorney bar, which vowed to “admit no men who would not be worthy members,” and subsequently pushed “for reforms relating to the ‘moral character’ and academic aptitude of applicants to the bar.”¹¹ Both of these reforms were grounded in anti-immigrant and racist sentiment.¹²

Central to the ABA’s exclusionary scheme was the capture of state decisionmakers, typically judges of the state’s highest court, to require graduation from accredited law schools rather than gaining admission to practice law through other less expensive and more direct pathways.¹³ White elite lawyers acting through the ABA did so by convincing state and federal governments to grant licenses to practice law only to graduates of law schools that received ABA accreditation.¹⁴ Thus, the ABA together with state actors emplaced the accreditation design by taking out the apprenticeship, night school, and other competitor models of legal training—a strategic approach that constituted discrimination by law.

The advent of standardized admission tests to law school and more rigorous bar exams replicating the case study method used in law schools were innovations designed . . .  to further protect the admission to practice law from perceived undesirable groups. At a practical level, only those who could afford college and demonstrate high grades and standardized test scores could attend an ABA accredited law school, especially as accreditation depended on later bar passage. Once admitted, students were taught uniformly with a pedagogy by full-time law professors, only to face a standardized bar exam as the final gatekeeper.¹⁵ Although framed as neutral measures of merit, the financial and logistical demands of this pathway ensured that only those already insulated by wealth and privilege could succeed, turning the system into a filter against non‑elite and marginalized applicants rather than a test of ability.

As intended, this accreditation design of exclusion and expense fell most heavily on marginalized racial groups. In the decades following the ABA’s interventions to take out alternative and more inclusive pathways to practice, the ABA and the elite firms reaped the benefits of their exclusionary handiwork. The attorney bar, as expected and intended, fell far short of reflecting the diversity of the U.S. population, as it has since.

B. Repair: Remedying Past Intentional Racial Discrimination

Against this systematic history of discrimination, any aspects of Standard 206 that could impact student admissions and hiring of faculty to ensure racial diversity would be clearly protected by case law that specifically recognizes that an entity engaged in intentional discrimination can employ race-conscious measures to remedy its own demonstrated discrimination.¹⁶ The ABA’s very birth was the manifestation of an intent to exclude . . .

Given this history, the Council should recognize that Standard 206 aligns with the guidance provided by the SFFA decision, rather than somehow flouting it.¹⁷ Additionally, the Supreme Court recognized that military schools have potentially distinct interests that justify a commitment to diversity measures that removes them from the reach of the SFFA outcome.¹⁸ Similarly, law schools have distinct interests that demand this same consideration . . .  [A]s the gateway to the legal profession, law schools have a special responsibility to ensure a diverse profession that properly stewards and guards the rule of law and access to justice for all members of society regardless of race, gender, class and other identity classifications. As an essential profession that remains predominately nondiverse, law schools thus can readily establish themselves under SFFA as having distinct interests to justify race (and other traditionally marginalized groups) conscious admission programs as a distinct interest and obligation. In essence, any such measure is a form of repair, rather than an application of the so-called diversity rationale that SFFA critiqued.

C. Persistent Legacies of Exclusion: The ABA’s Remedial Obligations Are Ongoing

The work of repair is far from complete. While we contend that Standard 206 was put in place to respond to clear discrimination against traditionally excluded groups, we call the Council’s attention to the fact that these same traditionally excluded groups still face barriers to access not only in the legal profession but also for professor positions at accredited law schools.

We recognize that there has been some progress . . .  Still, as shown by current statistics, the repair for legal education and thus the legal profession was and remains incomplete.

For example, based on the ABA’s 2024 statistics, lawyers of color were still underrepresented in relation to white men and women, comprising only 23 percent of the lawyer population.¹⁹ Breaking that disparity down further reveals that despite comprising 13.7 percent of the population, Black lawyers are only 5 percent of the legal profession; similarly, Latinx lawyers are just 6 percent of the lawyer population despite representing almost 20 percent of the U.S. population.²⁰ This lack of diversity impedes the opportunities for members of diverse communities to enjoy the economic advancement and security of a particularly lucrative profession (thanks to the monopoly enjoyed by lawyers who make it past the gatekeepers). It also hurts diverse communities unable to obtain representation from lawyers who might share their native language, culture, interests, and experiences and, thus, be better positioned to advocate on their behalf.²¹ This professional underrepresentation also impedes the cause of justice through the lack of diversity in judicial positions.²²

Within the law school itself, the lack of matriculated students from marginalized communities not only means fewer lawyers from these communities but also a smaller pool from which to draw faculty members. For instance, Latinx academics still comprise less than 2 percent of U.S. law faculties,²³ although they represent 20 percent of the U.S. population. Similarly, Black professors remain markedly underrepresented in U.S. law schools . . .

Thus, the ABA, due to its integral role and history in engineering a nondiverse legal profession followed by a more recently professed symbolic commitment to diversity, owes a duty to ensure measures in legal education that actively foster diversity and inclusion. This duty extends to the Council in its accreditation role on behalf of and as an adjunct of the ABA.

D. Current U.S. Law Continues to Support Diversity Policies

***

1. Standard 206 Post-SFFA

Our Critical Legal Collective organization previously submitted a comment objecting to changes to Standard 206 proposed after the Supreme Court’s 2023 decision on university admissions in SFFA.²⁴ We made several points in clarifying why that decision did not mandate any retreat from Standard 206’s current (now suspended) language nor from the ABA’s own expressed commitment to racial justice in the legal system . . .

[W]e view the recent and unprecedented action to repeal Standard 206 as driven by political pressure and faulty risk assessments rather than a legally sound conclusion that Standard 206 is unconstitutional.²⁵ We view it as nothing short of capitulation . . .

2. Changing Political Landscape: The Rule of Law and the Protection of DEI Policy

Across the country, courts have begun to invalidate or enjoin federal and state efforts to ban DEI programs or restrict so‑called “woke” policies. Most notably, there were two successful challenges to the Department of Education’s 2025 “anti‑DEI” Dear Colleague Letter (DCL),²⁶ [a letter which] attempted to reinterpret Title VI in a way that turns any attempts to address systemic antiblack “racism into white persecution[,] converts civil rights into [white] racial injury and recasts the beneficiaries of centuries of hierarchy as its victims.”²⁷ This “toxic inversion” would have dramatically restricted (and effectively prohibited) many DEI activities in schools, colleges, and universities as potential “race discrimination” under Title VI, even when they were race neutral or did not involve racial classifications.²⁸ . . .

Additional decisions have voided or enjoined state anti‑DEI directives, with judges concluding that these measures impose unconstitutional conditions on public institutions.²⁹ Across these rulings, courts identify numerous constitutional defects such as:

(1) Viewpoint discrimination—states cannot ban or penalize DEI‑related viewpoints in teaching or training.³⁰

(2) Unconstitutional vagueness—these laws fail to define what is prohibited, causing unconstitutional uncertainty.³¹

(3) Chilling of protected speech—educators and employers self‑censor to avoid penalties.³²

(4) Overbreadth—these laws sweep far beyond any legitimate state interest.³³

(5) Agency overreach—seen in the DCL cases where the Department of Education exceeded statutory authority and bypassed required procedures.³⁴

Taken together, these decisions suggest that courts will not uphold attacks on DEI policy through laws, executive orders, and agency directives.

***

II. Advancing Diversity and Inclusion Today: How Standard 206 Ensures Compliance and Reduces Risk of Future Harms

***

(link to full comment: https://drive.google.com/file/d/1HLJLVxhRp_aOJuDxt8LwNee4hSOUv3Gf/view)

1. Chrystia Freeland, The Great Capitulation Is Over. What Will Take Its Place?, N.Y. Times: Opinion Guest Essay (Feb. 25, 2026), https://www.nytimes.com/2026/02/25/opinion/trump-europe-civil-society.html. See also, The Editorial Board, Nine Law Firms Surrendered. Four Law Firms Won, N.Y. Times (Mar 3, 2026), https://www.nytimes.com/2026/03/03/opinion/law-firms-resistance-trump.html (noting that the Trump administration’s assaults on democracy are broad and explaining that Trump “has bypassed Congress when going to war . . . defied judges’ orders on immigration policy . . . glories in using the office of the presidency to enrich himself . . . declares national emergencies on false pretenses . . . lies about voter fraud and tries to change election rules to benefit himself”). ↑
2. Standard 206. DIVERSITY AND INCLUSION(a) Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.(b) Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity. ↑
3. Compact for Academic Excellence in Higher Education (Oct. 1, 2025), https://www.washingtonexaminer.com/wp-content/uploads/2025/10/Compact-for-Academic-Excellence-in-Higher-Education-10.1.pdf. ↑
4. See Fred L. Pincus, Trump Offered a Restrictive Deal to Universities That Almost All Rejected – but the Compact for Academic Excellence in Higher Education May Not Be Entirely Dead, The Conversation(Mar. 6, 2026), https://theconversation.com/trump-offered-a-restrictive-deal-to-universities-that-almost-all-rejected-but-the-compact-for-academic-excellence-in-higher-education-may-not-be-entirely-dead-275203; PEN America, What Is Trump’s Compact for Higher Education?—FAQ, https://pen.org/trumps-compact-for-higher-education-faq. ↑
5. Nat’l Ass’n of Student Fin. Aid Adm’rs, Statement by Higher Education Associations in Opposition to Trump Administration Compact (Oct. 17, 2025), https://www.nasfaa.org/uploads/documents/Statement-Compact-101725.pdf; Am. Ass’n of Univ. Professors, Compact for Academic Excellence in Higher Education, with Commentary by Isaac Kamola (Oct. 16, 2025), https://www.aaup.org/sites/default/files/2025–10/Compact%20text%20with%20Commentary%20by%20Isaac%20Kamola%2010.16.25.pdf. ↑
6. Katherine Knott, Project 2025 Would Radically Overhaul Higher Ed. Here’s How, Inside Higher Ed (Jul. 11, 2024), https://www.insidehighered.com/news/government/politics-elections/2024/07/11/how-project-2025-could-radically-reshape-higher-ed. ↑
7. See infra note18 and accompanying text. ↑
8. We say forgotten because this history is, to our knowledge, almost never taught in law school nor acknowledged in other legal settings, so we bring it to your attention here and now. For additional background on this history and the remedial obligations it compels, see Steven W. Bender, ABA Accreditation: A Critical Take (draft on file with the author). ↑
9. See George B. Shepherd & William G. Shepherd, Scholarly Restraints? ABA Accreditation and Legal Education, 19 Cardozo L. Rev. 2091, 2124–25 (1998) (detailing how the ABA’s efforts to embed accreditation as a gatekeeper to bar admission “especially harmed minorities, women, and the poor. A number of law schools had been founded in the first decades of the century specifically to serve these groups. . . .  However, the restrictions that the ABA obtained in the next decade eliminated almost all of these schools, and closed the path into the legal profession that these schools had opened for disadvantaged groups.”). ↑
10. Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 Cal. L. Rev. 1449, 1476 (1997); 10 La Raza L.J. 363 (1998) (details the connection of the case study method to identity-bound exclusion in part because it led to expensive full-time teachers rather than practicing lawyers teaching law). ↑
11. Id., at 1479. The reference to men was not meant to be inclusive of women, as at the time women were permissibly excluded from the practice of law by many states. See Bradwell v. State, 83 U.S. 130 (1873) (upholding the exclusion of women from the legal bar, concluding the right to admission was not part of the constitutional privileges and immunities protected against abridgement by the states). ↑
12. Id. ↑
13. George B. Shepherd, Defending the Aristocracy: ABA Accreditation and the Filtering of Political Leaders, 12 Cornell J.L. & Pub. Pol’y 637, 640 (2003) (explaining how ABA accreditation killed off most Black law schools, while concurrently excluding Black students from admission to ABA-accredited schools, which affirmative action did not fully redress). The old pathway of apprenticeship—clerking for a specified period with an established law firm—likely had its own exclusionary safeguards by limiting entry to the profession to those who had established relationships and proximity to the old guard of the lawyer bar. Yet, the night school model of training offered a pathway to those without such relationships until the ABA’s accreditation campaign effectively killed both pathways. ↑
14. Id. at 642–43 (noting: “In 1923, no state required graduation from law school, much less from an ABA-accredited school. In 1935, only nine states required a degree from an ABA-accredited school; by 1938, twenty-three states did. Today [in 2003], almost all states require graduation from an [ABA] accredited law school. The bar also succeeded in convincing states to require substantial education before law school. In 1927, only six states required any college; only Kansas required more than one year of it. By 1942, almost all states required at least two years of college.”). ↑
15. In terms of ramping up costs as a gatekeeper to the practice of law, by 1937, the ABA “adopted the requirements of two years of college study, and three years of full-time or four years of part-time study at a law school that had a library of at least 7,500 volumes, a minimum of three full-time professors, and a student-faculty ratio of no more than one hundred to one.” Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 179 (1983). Howard Law School, a historically Black school and only an evening part-time program until 1923, aspired toward ABA accreditation in the 1920s, growing its library and full-time faculty, as well as requiring two-years of college. Yet enrollment at the Black law school declined with these measures, and the corresponding tuition jump, from 135 students in 1923–1924 to just 82 students in 1926–1927. Id. at 195–96; see also Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 Va. L. Rev. 727 (2000) (detailing the impacts of accreditation standards on Black law schools). Historians directly tie the imperative to raise standards to an intent to exclude Jews, immigrants, and Blacks from the legal profession. E.g., Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976). For the connection between racial, wealth, and educational inequality, see Robert S. Chang and Jerome M. Culp, Jr., Business as Usual? Brown and the Continuing Conundrum of Race in America, 2004 U. Ill. L. Rev. 1181 (2004) (linking several systems—housing, education, family, health case, employment, and criminal justice—as mutually reinforcing and ensuring persistent wealth inequality for racial minorities). ↑
16. See Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) (“it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination;” finding that neither school system before the Court could rely on the remedial rationale to support race conscious school assignments of students given in one case a past history of an absence of segregation by law or in the other case the existence of a desegregation decree that had since been dissolved on a finding of elimination of discrimination); Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181, 207 (2023) [hereinafter “SFFA”] (noting that “our precedents have identified only two compelling interests that permit resort to race-based government action . . . . One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute.”). ↑
17. SFFA, 600 U.S. 181 (2003). ↑
18. See SFFA, 600 U.S. at 207 (excluding military schools from the reach of the decision striking down affirmative action admissions programs of two universities, given “the potentially distinct interests that military academies may present”). Although the remedial rationale argument made here based on the ABA’s exclusionary history is directed at student admissions, the rationale can readily extend to faculty hiring given that law faculty predominantly hold a law degree from U.S. ABA-accredited institutions and thus the hiring pool was shaped through the ABA-engineered exclusions. ↑
19. Am. Bar Ass’n, Profile of the Legal Profession 2024: Demographics, https://www.americanbar.org/news/profile-legal-profession/demographics (last visited Mar. 26, 2026) (providing national demographic data on lawyers, law students, and the profession). ↑
20. Id. (finding that Latinx people comprise 19.5 percent of the U.S. population and Native Americans comprise the smallest racial or ethnic group among U.S. lawyers—just 1 percent in relation to 2.7 percent of the U.S. population). Although Black law schools were eliminated by the advent of accreditation, there were no similar Latinx law schools to quash. Rather, other societal constraints did the trick. See Roithmayr, 85 Cal. L. Rev. at 1485 (detailing the pre-accreditation constraints on entry by Latinx to the legal profession: “Although the University of Texas Law School formally excluded Latinos by restricting their admission to white students only, law schools did not need to adopt formal exclusionary policies for Chicanos and other Latinos; pre-existing social and economic constraints alone were sufficient to keep them out. Most Mexicans and Mexican Americans lacked even the requisite high-school degree to apply to proprietary schools, much less the more prestigious university-affiliated law schools. The majority of newly arrived Mexicans in the Southwest and California took jobs in agriculture, where they suffered . . . dramatically low wages. A minority of Mexican immigrants entered the lower ranks of industrial employment in the Northwest and the Midwest as unskilled laborers, but few sought entry into the legal profession.”). ↑
21. Cf. Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, and Rule of Law, 73 Fordham L. Rev. 2081 (2005) (detailing how colorblindness typically practiced by white lawyers hampers their ability to effectively represent clients of color); and see, Hon. Sonia Sotomayor, A Latina Judge’s Voice, 13 Berkeley La Raza L.J. 87 (2002). ↑
22. See Sotomayor, supra note 21 at 92 (“Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure. . . . I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.”). ↑
23. Steven W. Bender & Ediberto Román, Sin Vergüenza: Michael Olivas and Crop Cultivation, 61 Hou. L. Rev. 889, 893 (2024). ↑
24. Letter to the American Bar Association re: Standard 206 Proposed Revisions (2025), https://criticallegalcollective.org/wp-content/uploads/2025/12/CLC-Letter-re-Standard-206-Proposed-Revisions.pdf ↑
25. Chris Williams, ABA’s Defunct Diversity In Law School Standard Moves Toward Getting Repealed, Above the Law (Feb. 23, 2026), https://abovethelaw.com/2026/02/abas-defunct-diversity-in-law-school-standard-moves-toward-getting-repealed. ↑
26. The first was the American Fed’n of Tchrs. v. U.S. Dep’t of Educ., No. SAG‑25‑628 (D. Md. Apr. 24, 2025) (mem. op.) (granting in part plaintiffs’ motion for a preliminary injunction and staying the February 14, 2025 Dear Colleague Letter under 5 U.S.C. § 705 based on plaintiffs’ likelihood of success on their APA claim, and identifying substantial First Amendment, Fifth Amendment vagueness, and statutory‑authority concerns raised by the Letter and related enforcement actions); American Fed’n of Tchrs. v. U.S. Dep’t of Educ., No. SAG‑25‑628 (D. Md. Aug. 14, 2025) (vacating the Department of Education’s February 14, 2025 Dear Colleague Letter and April 3, 2025 Certification Requirement under 5 U.S.C. § 706 and entering judgment for plaintiffs on multiple constitutional and statutory claims).The second was a New Hampshire case, information of which can be found here: Annmarie Timmins, NH Lawsuit Ends Trump Administration’s DEI Ban in Schools Nationwide, N.H. Pub. Radio (Feb. 18, 2026), https://www.nhpr.org/nh-news/2026–02–18/dei-ban-trump-administration-aclu-of-new-hampshire-nea-of-new-hampshire-federal-lawsuit-schools. See original injunction, Nat’l Educ. Ass’n v. U.S. Dep’t of Educ., No. 25‑cv‑091‑LM (D.N.H. Apr. 24, 2025) (granting a preliminary injunction and enjoining enforcement of the Feb. 14, 2025 Dear Colleague Letter and related DEI‑certification mandate, finding plaintiffs likely to succeed on their APA challenge and identifying serious First Amendment and statutory‑authority concerns). ↑
27. Henry A. Giroux, The War on DEI and the Scourge of White Supremacist Politics, Films For Action (Mar 10, 2026), https://www.filmsforaction.org/articles/the-war-on-dei-and-the-scourge-of-white-supremacist-politics/. Many others have made similar observations, see e.g., Anna Griffith and David D. Troutt, Rewriting Racial Equality: The State of Civil Rights Law under Trump, Rutgers Center on Law, Inequality and Metropolitan Equity 12 (Nov. 2025), https://www.clime.rutgers.edu/publications-filtered/rewriting-racial-equality-under-trump. ↑
28. Id. (referring to this reinterpretation as a “toxic inversion.”). ↑
29. See, e.g., Sarah Hinger, Trump’s DEI Crackdown Hit a Wall in Court. What’s Next?, Mother Jones (Mar. 3, 2026) (summarizing federal rulings voiding anti‑DEI directives and noting constitutional defects including viewpoint discrimination and violations of academic freedom). ↑
30. Pernell v. Fla. Bd. of Governors, No. 4:22‑cv‑304‑MW‑MAF, 2022 WL 16985720 (N.D. Fla. Nov. 17, 2022) (holding that Florida’s higher‑education “Stop WOKE Act” provisions constituted impermissible viewpoint discrimination because they prohibited only disfavored perspectives on race, sex, and inequality); Honeyfund.com, Inc. v. DeSantis, No. 4:22‑cv‑227‑MW‑MAF, 2022 WL 3486962 (N.D. Fla. Aug. 18, 2022) (holding that the employer‑training provisions of the Stop WOKE Act were unconstitutional viewpoint discrimination because they targeted specific viewpoints on race and sex). ↑
31. Pernell, 2022 WL 16985720 (finding the statute unconstitutionally vague, including its undefined requirements for “objective” instruction and its prohibition on “advancing” certain concepts); Honeyfund, 2022 WL 3486962 (holding that the law was unconstitutionally vague because key terms such as “objective” and “endorse” were undefined and failed to give fair notice of prohibited conduct). ↑
32. Pernell, 2022 WL 16985720 (finding that the law chilled academic speech by forcing faculty to self‑censor to avoid discipline and loss of employment protections); Honeyfund, 2022 WL 3486962 (concluding that employers would self‑censor DEI trainings to avoid liability under the statute, demonstrating a constitutionally significant chilling effect). ↑
33. Pernell, 2022 WL 16985720 (noting that the law swept broadly into protected academic discourse and extended far beyond any legitimate regulatory interest); Honeyfund, 2022 WL 3486962 (observing that the statute’s restrictions extended well beyond the state’s legitimate interest in preventing discrimination and intruded into protected expressive activity). ↑
34. AFT, No. SAG‑25‑628 (D. Md. Apr. 24, 2025); AFT, No. SAG‑25‑628 (D. Md. Aug. 14, 2025). ↑