Each week, Liebert Cassidy Whitmore provides a summary of newly issued Executive Orders and other significant Presidential and federal actions that have a foreseeable impact on governance, compliance, and operational policies for California employers. The summaries below outline the key provisions of each action, along with our brief analysis of their potential implications for municipal agencies, school districts, private schools, and nonprofits.
On February 14, 2025, the Department of Education released a Dear Colleague Letter reminding schools that they risk losing federal funding if they do not comply with anti-discrimination laws. The Letter appeared to establish the Department’s interpretation of anti-discrimination laws to include certain diversity, equity, and inclusion (“DEI”) policies and practices.
On April 24, 2025, federal judges in New Hampshire and Maryland ruled that plaintiffs in two separate lawsuits were likely to succeed in proving that the Letter violated procedural standards under the Administrative Procedure Act and was unconstitutionally vague, and chilled free speech under the First Amendment. The Maryland court’s preliminary injunction applies nationwide.
On the same day, a federal judge in the District of Columbia issued a preliminary injunction prohibiting the Department from enforcing its demand that state education agencies (SEAs) and local education agencies (LEAs) certify by April 24 that they were in compliance with the anti-DEI rule in order to preserve their Title I funding, as the policy was so vague that schools could not know if they were in compliance or not.
Restoring Equality of Opportunity and Meritocracy (April 23, 2025)
For decades, the disparate impact theory of discrimination allowed lawsuits against employers under anti-discrimination laws, including Title VII and Title VI, for policies and practices that did not intentionally discriminate but had a disparate impact on job applicants or employees of a particular protected classification, such as race or sex.
An April 23, 2025 Executive Order seeks to eliminate the disparate impact theory of liability, which, according to the Order, violates the Constitutional principle of “equality of opportunity, not equal outcomes.” Specifically, the Order revokes Presidential approval of the sections of the Department of Justice Title VI and Title VII implementing regulations that establish disparate impact liability. The Order also directs the Attorney General to initiate appropriate action to repeal or amend the implementing regulations for Title VI for all agencies to the extent they contemplate disparate-impact liability.
The Order directs executive departments and agencies to deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.
Finally, the Order requires the Attorney General to determine whether any federal laws preempt state laws or regulations that establish disparate-impact liability.
Employers should be advised that this Order does not impact the viability of disparate impact claims in private litigation. The Order itself does not actually change federal law or regulations, and courts will continue to apply such laws and regulations along with Supreme Court precedent. However, employers can expect the Equal Employment Opportunity Commission (EEOC) and other federal agencies to end all enforcement activity related to disparate impact claims.
Executive Action: Reforming Accreditation to Strengthen Higher Education (April 23, 2025)
Accreditors are independent organizations that evaluate colleges, universities, and educational programs to ensure they meet certain standards of quality. Under the Higher Education Act, for a college or university to be eligible to receive federal funds (like Pell Grants, student loans, and other aid), it must be accredited by an accreditor that is recognized by the U.S. Department of Education.
On Wednesday, President Trump signed an Executive Order requiring the Secretary of Education to hold accountable—including through denial, monitoring, suspension, or termination of accreditation recognition—accreditors who violate federal law, including by requiring institutions seeking accreditation to “engage in unlawful discrimination under the guise of ‘diversity, equity, and inclusion’ [DEI] initiatives.” The Order specifically tasks the Attorney General and Secretary of Education with investigating unlawful DEI activity in law schools and medical schools advanced by accrediting bodies in these respective fields.
Additionally, the Order enumerates new principles of accreditation, including ensuring that “accreditation requires higher education institutions to provide high-quality, high-value academic programs free from unlawful discrimination or other violations of Federal law ”and “streamlining the process for higher education institutions to change accreditors,” among other standards.
The Order may have a near-term impact on law schools and medical schools that receive federal funding, as the Order appears to focus on investigating and terminating DEI policies and programs that the administration considers unlawful in such educational institutions. The Order may also impact higher education institutions that receive federal funds more broadly by effecting changes to accreditation standards. LCW will monitor the Department of Education’s implementation of this Order.
Advancing Artificial Intelligence Education for American Youth (April 23, 2025)
A new Executive Order seeks to promote artificial intelligence (AI) literacy and proficiency through integration of AI into K-12 education. The Order establishes a new interagency White House Task Force on Artificial Intelligence Education to establish public-private partnerships with AI industry organizations, academic institutions, nonprofit entities, and other organizations with expertise in AI and computer science education to develop online resources focused on teaching K-12 students foundational AI literacy.
The Order further directs the Task Force to identify any federal funding mechanisms, including discretionary grants, that can be used to provide resources for K-12 AI education.
The Order directs the Secretary of Education to prioritize use of AI in discretionary grant programs for teacher training and the Secretary of Labor to increase participation in AI-related Registered Apprenticeships.
The Order may result in new funding opportunities for local educational agencies and private K-12 schools seeking to incorporate AI education for teachers and students.
Reinstating Common Sense School Discipline Policies (April 23, 2025)
In an Executive Order entitled “Reinstating Common Sense School Discipline Policies,” the Trump administration criticizes an Obama-era Department of Education guidance document that advised schools that disciplinary policies—even those drafted without discriminatory intent—may violate anti-discrimination laws if students from certain racial groups are disproportionately affected by them, i.e., if the application of the policy had a disparate impact. The guidance document provided that if students of one race are sanctioned at disproportionately higher rates under a given policy, the school should be prepared to demonstrate that the disciplinary measure is necessary to meet an important educational goal and that they have considered alternatives.
The Trump administration rescinded this guidance document in 2018. The new Executive Order states that the guidance “effectively required schools to discriminate on the basis of race by imposing discipline based on racial characteristics, rather than on objective behavior alone.”
The Order requires the Secretary of Education to issue new guidance regarding school discipline to local and state educational agencies (“LEAs” and “SEAs”) within 30 days of the Order.
The Order calls for appropriate enforcement action against LEAs and SEAs that “fail to comply with Title VI protections against racial discrimination” by continuing to use racially preferential discipline practices.
LCW will provide an update when the Department of Education issues the new guidance.
Transparency Regarding Foreign Influence at American Universities (April 23, 2025)
The Higher Education Act requires institutions of higher education to report significant sources of foreign funding. An April 23, 2025 Executive Order makes clear that going forward, the Department of Education will robustly enforce this requirement in order to protect American educational, cultural, and national security interests. The Order states that noncompliance with reporting requirements could jeopardize an institution’s federal funding.
Public and private institutions of higher education should be prepared to report to the Department of Education any gifts or contracts from a foreign source that total $250,000 or more in a calendar year, as well as the source and purpose of the funds. (See 20 U.S. Code § 1011f.)