Case 1:25-cv-00628-SAG Document 51 Filed 04/17/25 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`NORTHERN DIVISION
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`American Federation of Teachers, et al.,
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`Plaintiffs,
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`v.
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`U.S. Department of Education, et al.,
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` Civil Case No. 1:25-cv-00628
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`Defendants.
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`REPLY IN SUPPORT OF PLAINTIFFS’
`MOTIONS FOR PRELIMINARY INJUNCTION
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`Case 1:25-cv-00628-SAG Document 51 Filed 04/17/25 Page 2 of 23
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION .................................................................................................................. 1
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`II. ARGUMENT .......................................................................................................................... 3
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`A. Plaintiffs have established standing and irreparable harm. ..................................... 3
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`B. Plaintiffs have shown a likelihood of success on the merits on their APA claims. . 6
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`1. The Letter is final agency action and a legislative rule. ..................................... 6
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`a. The Letter satisfies both prongs of the Bennett test. ......................................... 7
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`b. The Letter is a legislative rule. .......................................................................... 8
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`2. The Departments’ actions violate the APA ....................................................... 10
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`a. Not in accordance with law and in excess of statutory authority .................... 10
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`b. Arbitrary and capricious .................................................................................. 11
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`C. Plaintiffs have also shown a likelihood of success on their claim that the Letter
`and Certification are unconstitutionally vague. .................................................... 12
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`1. The void for vagueness doctrine applies here. .................................................. 13
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`2. The Letter and Certification are void for vagueness. ........................................ 14
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`D. Plaintiffs have also shown a likelihood of success on their First Amendment
`claims. ................................................................................................................... 15
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`E. Balance of equites, scope of relief, stay of injunction, and bond ......................... 18
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`III. CONCLUSION ..................................................................................................................... 19
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`i
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`Case 1:25-cv-00628-SAG Document 51 Filed 04/17/25 Page 3 of 23
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`I.
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`INTRODUCTION
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`The Department of Education (“Department”) may not accomplish its policy objectives by
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`threatening and coercing countless educators into adherence or overhauling education policy
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`without proper guardrails and public engagement. Yet in the two months since the Department’s
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`February 14, 2025, Dear Colleague Letter (“Letter”), Dkt. 31-14, millions of educators and
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`schools have faced those threats and an unclear legal landscape, exacerbated by the Department’s
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`February 28, 2025, Frequently Asked Questions document (“FAQs”), Dkt. 31-17, and the April 3,
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`2025, Certification, Dkt. 37-9. In opposing Plaintiffs’ motion for emergency relief to prevent
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`further harm from the Department’s actions, the Department has narrowed the questions before
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`the Court significantly by failing to meaningfully contest District 4J’s standing to challenge the
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`Certification, which it concedes is final agency action and otherwise fails to defend on the merits.
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`Defs.’ Resp. in Opp’n to Prelim. Inj., Dkt. 42 (“Opp.”). For those questions that remain, the
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`Department fails to even address Plaintiffs’ evidence or rebut Plaintiffs’ arguments. Indeed, the
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`Department has little defense to Plaintiffs’ claims, instead asking the Court to deny the requested
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`emergency relief based on circular arguments, blame shifting, and a demonstrably false insistence
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`that nothing has changed.
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`First, the Department’s arguments largely boil down to (1) that the Court and the public
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`should blindly trust the Department’s assessment of what constitutes unlawful discrimination,
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`(Opp. at 5-7, 21, 23, 26) (citing the Letter as authority for its conclusion), and ignore guidance and
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`Title VI case law to the contrary; (2) that the Department is empowered to impose conditions on
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`speech and funding to prevent discrimination as the Department currently understands it (Opp. at
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`28-31); (3) that diversity, equity, and inclusion are unlawful (Letter at 1-2; FAQs at 5-7;
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`Certification at 3-4; Opp. at 21); and (4) that thus the Letter, FAQs, Certification, and other
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`1
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`Case 1:25-cv-00628-SAG
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`implementations cannot violate the Constitution or the Administrative Procedures Act. Besides
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`being circular, the Department’s argumentrests on its own conclusory statements about diversity,
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`equity, and inclusion: without that foundation, it necessarily fails.
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`Second, the Departmentasserts that any uncertainty about the Department’s purposeis the
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`sole fault of States, municipalities, school boards, and educators. (Opp. at 2-3, 13-14, 26-27). But
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`this is contrary to the experience on the ground and the record before the Court. See generally Pls.
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`Mem ISO PI, Dkt. 31-1 (“PI Mem.”) at 7, 39 & n.40, Pls.” Mem. ISO Expedited PI and APA § 705
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`Stay of Cert. Dkt. 37-1 (“PI Cert. Mem”)at 6-7.
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`Third, the Department arguesthat the Letter, FAQs, and Certification do not represent any
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`change from preexisting policy. But the Department underminesits own argument by opposing
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`Plaintiffs’ request to maintain the status quo. See, e.g., Opp. at 1, 20. The record before the Court
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`tells a very different story. A side-by-side comparison of the Department’s Letter, FAQs, and
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`Certification with preexisting guidance shows that the Department’s actions do not represent
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`incremental shifts, but instead a complete overhaul of the education landscape. For example:
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`samples.” (Letter 2-3)
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`Department Policy Pre-Jan. 19, 2025
`No LongerPublicly Available’
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`Current Department Policy
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`“[{C]ampuses[should be] welcoming and supportive|“DEI programs . . . deny students the ability to
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`environment|s] for students through affinity groups;|participate fully in the life of a school.” (Letter
`diversity, equity, and inclusion programming; and
`3)
`shared, accessible spaces.” (Dkt. 31-28)
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`“Federal law thus prohibits covered entities
`“[I]nstitutions of higher education remain free to
`from using race in decisions pertaining to
`consider any quality or characteristic of a student
`admissions,. .
`. [and a]lthough some programs
`that bears on the institution’s admission decision,
`such as courage, motivation, or determination, even|may appear neutral on their face, a closer look
`if the student’s applicationties that characteristic to|reveals that they are, in fact, motivated byracial
`their lived experience with race—provided that any|considerations,” for example consideration of
`benefit is tied to ‘that student’s’ characteristics, and|“students” personal essays, [and] writing
`that the studentis ‘treated based onhis or her
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`! The guidancesreflected in Dkt. 31-28, Dkt. 31-20, and Dkt 31-19 were all issued post-SFFA.
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`experiences as an individual[,]’ and ‘not on the basis
`of Race.’” (Dkt. 31-20)
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`“[D]iversity, equity, and inclusion training;
`instruction in or training on the impact of racial
`discrimination; cultural competency training; or
`other nondiscrimination trainings . . . [do not]
`categorically create a hostile environment on the
`basis of race” (Dkt. 31-19)
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`“DEI programs . . . frequently preference certain
`racial groups and teach students that certain
`racial groups bear unique moral burdens that
`others do not. Such programs stigmatize
`students who belong to particular racial groups
`based on crude racial stereotypes.” (Letter 3)
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`“[I]nstruction in or training on the impact of racism
`or systemic racism” is not prohibited by Title VI.
`(Dkt. 31-29)
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`“[I]nstitutions have toxically indoctrinated
`students with the false premise that the United
`States is built upon ‘systemic and structural
`racism’ and advanced discriminatory policies
`and practices.” (Letter 2)
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`The Department ignores or mischaracterizes binding precedent and targets work that
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`generations of educators, and Department employees, have done to dismantle racially exclusionary
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`schools. The record reveals that the Department’s actions are upending decades of law and policy
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`while undermining schools dependent on public funds. Plaintiffs respectfully request that the Court
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`issue a preliminary injunction to prevent the Department from doing so.
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`II.
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`ARGUMENT
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`A. Plaintiffs have established standing and irreparable harm.
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`Defendants do not contest District 4J’s standing to challenge the Certification, nor that it
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`is suffering irreparable harm due to the Certification, nor could they. See PI Cert. Mem. at 6-8.
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`As to the Letter, Defendants nominally challenge District 4J’s standing by arguing it was
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`not properly pled in the Complaint—effectively conceding that District 4J has shown standing in
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`its declaration. As Plaintiffs plainly plead sufficient factual allegations supporting District 4J’s
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`standing in the Complaint, see e.g., Dkt. 1, Compl. ¶¶ 51, 54, 55, 59, 77, 100, 104, 120-124, 126-
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`129, 132, 133, 138, 139, these arguments can be easily dispensed. Because only one plaintiff needs
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`standing for the case to proceed, no further inquiry into standing is necessary. Outdoor Amusement
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`3
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`Bus. Ass’n., Inc. v. Dep’t. of Homeland Sec., 983 F.3d 671, 681 (4th Cir. 2020) (cleaned up).
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`Nonetheless, the Associational Plaintiffs have established their standing as well.
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`Plaintiffs AFT, AFT-MD, and ASA have asserted associational, not organizational,
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`standing. The enforcement threatened by Defendants directly impacts Associational Plaintiffs’
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`members. The Letter itself vaguely prohibits “teach[ing]” DEI content, Letter at 3, and the
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`Certification threatens “serious consequences” for “individual[s] or entit[ies],” Certification at 3.
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`Educators’ speech or expressive conduct can be the source of claims arising under the Letter,
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`reported in the DEI Portal, or pursued pursuant to the Certification, and the consequences from
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`investigation, contractual suit, or False Claims Act litigation affects them, their reputations, and
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`their livelihoods.2 See PI Mem. at 10-11; PI Cert. Mem. at 7. This risk is multiplied because anyone
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`can file a complaint on the “EndDEI” portal or a qui tam lawsuit under the False Claims Act. Susan
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`B. Anthony List v. Driehaus, 573 U.S. 149, 164 (2014) (credibility of enforcement threat
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`“bolstered” when administrative scheme allows any person with knowledge of a purported
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`violation to file a complaint).
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` Unlike in Clapper v. Amnesty Int'l USA, 568 U.S. 398, 412-13 (2013), the Certification
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`and the Letter apply directly to educational institutions, are by their own terms “certainly
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`impending” due to their threats of immediate enforcement, and there is no third-party step required
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`before the risk is effective. Defendants’ claim that Plaintiffs’ fears of enforcement are “speculative”
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`because the Letter “only restates existing law” also fails, given the Department has departed from
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`the prior understanding of the law. See supra pp. 2-3; PI Mem. at 25-28.
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`As to chill, Defendants claim that Plaintiffs’ members’ fear of self-censorship is subjective
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`and speculative. As explained below, infra Sec. II.B.2.a., because the Letter’s prohibitions
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`2 Additionally in many states, there are state bodies that can revoke a teachers’ certification and licensure if they do
`not comply with federal law.
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`4
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`encroach on curricular choices and the topics teachers can teach, without any clear guidance on
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`what will be determined to be unlawful, this argument fails. Indeed, Plaintiffs are far from the only
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`parties who have described feeling confused as to the prohibitions in the Letter and chilled as a
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`result. See PI Mem at 39 & n. 40; Ex. 46, Hart Decl. ¶¶ 27-28 (describing teachers and
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`administrators nationwide not knowing what is compliant with the Department’s position and
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`being chilled as a result); Ex. 47, Steele Decl. ¶¶ 32-33.
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`More broadly, educational institutions across the country have responded to these threats
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`by eliminating programming and jobs, see PI Mem. at 39 n.41, and it is reasonable to fear that this
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`will continue. This response is the “predictable effect of Government action,” Dep’t of Com. v.
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`New York, 588 U.S. 752, 768 (2019), not “unfettered choices” within the scope of “broad and
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`legitimate discretion,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (citation omitted); see
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`also Opp. at 31 (conceding schools’ restrictions are driven by an effort “to avoid enforcement
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`actions by [the Department]”). Responses, including any arguable overcorrections, are caused by
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`the vague terms of the Letter itself, and now, the steep additional penalties the Certification
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`threatens. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (“Uncertain meanings
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`inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the
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`forbidden areas were clearly marked.”) (cleaned up); cf. Dep’t of Com., 588 U.S. at 768
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`(traceability satisfied where “third parties will likely react in predictable ways”). Likewise,
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`Plaintiffs fear that the Department will investigate complaints consistent with its stance opposing
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`diversity, equity, and inclusion received through the End DEI Portal is reasonable and not
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`“imaginary or wholly speculative.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289,
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`302 (1979); see Opp. at 27 (confirming the Department will investigate complaints consistent with
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`its understanding of discrimination); Ex. 50, Portal Press Release (including quote describing the
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`5
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`portal as an opportunity for the public to report the use of “critical theory, rogue sex education and
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`divisive ideologies” in schools). In fact, the harm is “already occurring.” New York v. Dep't of
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`Homeland Sec., 475 F. Supp. 3d 208,227 (S.D.N.Y. 2020); PI Mem. at 7-11, 38-39; PI Cert. Mem.
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`at 33-35.
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`Because of the “prospect of an unconstitutional enforcement,” Air Evac EMS, Inc. v.
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`McVey, 37 F.4th 89, 103 (4th Cir. 2022), and the fact that “the loss of constitutional freedoms, ‘for
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`even minimal periods of time, unquestionably constitutes irreparable injury,’” Leaders of a
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`Beautiful Struggle v. Balt. Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021) (quoting Elrod v. Burns,
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`427 U.S. 347, 373 (1976)), Plaintiffs have also shown irreparable injury. See PI Mem. at 36-38; PI
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`Cert. Mem. at 33-35.
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`B. Plaintiffs have shown a likelihood of success on the merits on their APA claims.
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`1. The Letter is final agency action and a legislative rule.
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`Defendants do not contest, and therefore concede,3 that the Certification is final agency
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`action. See PI Mem. at 20-21. The Letter is also final agency action, 4 and is thus reviewable under
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`the APA whether it is an interpretative or legislative rule.5 Because the Letter attempts to effect a
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`substantive change in existing law or policy, it is a legislative rule.
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`3 Ferdinand-Davenport v. Child’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010) (finding a failure to address an
`argument in response constituted abandonment of a claim); Redondo-Borges v. Dep't of Hous. & Urb. Dev., 421 F.3d
`1, 6 (1st Cir. 2005) (“Few principles are more sacrosanct in this circuit than the principle that issues averted to in a
`perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”) (quotation
`marks omitted).
`4 Plaintiffs are not arguing the FAQ in isolation is a final agency action. Rather, as an additional manifestation of the
`Department’s changed position on Title VI, and because it is directly tied to the Letter, if the Department is enjoined
`from enforcing the Letter because it is unlawful and violates the constitution, the FAQs should similarly be enjoined.
`5 “[I]interpretive rules may be subject to pre-enforcement judicial review” if they otherwise fulfill the hallmarks of
`finality articulated in Bennett. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 2014); POET Biorefining,
`LLC v. EPA, 970 F.3d 392, 406 (D.C. Cir. 2020) (finding guidance was final agency action and an interpretive rule).
`Ultimately, what matters is whether the agency action at issue has “legal force or practical effect.” Long Term Care
`Partners, LLC v. United States, 516 F.3d 225, 237 n.13 (4th Cir. 2008). For the reasons described, the Letter possesses
`several qualities that render it final agency action regardless of the type of rule it is, and it is subject APA review on
`that basis.
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`6
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`a. The Letter satisfies both prongs of the Bennett test.
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`The government does not contest that the Letter marks the consummation of agency’s
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`decision-making process, satisfying prong one of the Bennett test. See Bennett v. Spear, 520 U.S.
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`154, 177–78 (1997); cf. Opp. at 16-17. Nor could it, as the Letter is not “merely tentative or
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`interlocutory in nature,” see Fund for Animals, Inc. v. Bureau of Land Mgmt., 460 F.3d 13, 28
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`(D.C. Cir. 2006), and is instead an “unequivocal statement of the agency’s position” on the
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`appropriate standard by which to make determinations on Title VI investigations and violations.
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`Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004).
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`The Letter satisfies Bennett’s second prong because it gives rise to “direct and appreciable
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`legal consequences.” Hawkes Co., 578 U.S. at 591. The Letter states that the Department will “no
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`longer tolerate” the activities the Letter describes and that it will “take appropriate measures to
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`assess compliance . . . based on the understanding embodied in this letter… beginning no later
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`than 14 days from” the date of the Letter’s issuance. Letter at 3 (emphasis added). Thus, by its own
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`terms, the Letter itself is the basis for potential enforcement actions, and those actions will be
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`brought swiftly and implicate an entity’s federal funding. Letter at 3. Courts have concluded that
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`much more tentative guidance documents—for instance which only describe examples that OCR
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`“may consider” in the course of an investigation—are final agency action. See, e.g., Tennessee v.
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`Dep’t of Educ., 104 F.4th 577, 598-99 (6th Cir. 2024). Additionally, the understanding embodied
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`in the Letter diverges from that in prior guidance, see supra pp. 2-3, infra Sec. II.B.2.b., which the
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`Department has summarily removed from its website. See Am. Compl. ¶ 75 n.21, see Dkt. 31-18
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`to -21, 26-29 (examples of removed guidance). Because the Letter thereby “alter[s] the legal
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`7
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`landscape,” it constitutes final agency action. Golden & Zimmerman, LLC v. Domenech, 599 F.3d
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`426, 433 (4th Cir. 2010).6
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`While Defendants describe the Letter as simply a reiteration of existing legal requirements,
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`which “does not bind the public or create new legal standards,” Letter at 1 n.3, that language is
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`boilerplate, and belied by their own enforcement actions. See, e.g., Am. Acad. of Pediatrics v. FDA,
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`379 F. Supp. 3d 461, 488 (D. Md. 2019) (finding neither the fact that an agency describes an action
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`as “interpretive” or uses “boilerplate language” disclaiming the creation of rights determines
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`whether the action is final); PI Mem. at 6 (describing Department’s announcement of Title VI
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`investigations against 51 IHEs). It is also belied by the actions of the administration against DEI
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`more broadly. PI Mem. at 16 & n.14. In sum, the Department’s new position, as articulated in the
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`Letter, produces legal consequences.
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`b. The Letter is a legislative rule.
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`A rule “is legislative if it supplements a statute, adopts a new position inconsistent with
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`existing regulations, or otherwise effects a substantive change in existing law or policy.” Child.’s
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`Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018). Conversely, an
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`interpretive rule “reflect[s] what the administrative agency thinks the statute means, and only
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`remind[s] affected parties of existing duties.” Id. (quotation omitted).
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`There can be no question that the Letter “effects a substantive change in existing law or
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`policy.” Id. at 620. The Letter directly contradicts the Department’s existing regulations
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`implementing Title VI, 34 C.F.R. § 100.5(i), making it, by definition, a legislative rule. See PI
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`Mem. at 36; Nat. Res. Def. Council v. Wheeler, 955 F.3d 68, 83 (D.C. Cir. 2020) (finding that
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`6 See also Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 285 (2018) (“[A]n agency action is ‘immediately
`reviewable’ when it gives notice of how a certain statute will be applied.”); Genesis Healthcare, Inc. v. Becerra, 39
`F.4th 253, 262 (4th Cir. 2022) (holding that agency action giving notice of how the agency interprets the relevant
`statute was a final agency action even absent an enforcement action against a particular party).
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`8
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`contradicting an existing regulation is a hallmark of legislative rules) (cleaned up). Moreover, the
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`Letter announces several presumptions of illegality regarding DEI programming. No prior
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`guidance from the Department has made the determination that “DEI” programs are presumptively
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`illegal under Title VI and SFFA. In fact, prior guidance, supra pp. 2-3, encouraged DEI
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`programming as a means of increasing equity and remediating the effects of past discrimination.7
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`Social-emotional learning, which is identified in FAQ 8 as a “veil” for “discriminatory policies,”
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`is a pedagogical approach that has been endorsed and funded by Congress. Ex. 47, Steele Decl. ¶¶
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`4-6, 14, 16-18. The agency has, in other words, “change[d] the rules of the game,” Sprint Corp. v.
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`FCC, 315 F.3d 369, 374 (D.C. Cir. 2003), by bringing within the purview of Title VI a host of
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`activity and speech that had previously been excluded—a quintessentially legislative action. A
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`holistic review of SFFA does not support enforcing Title VI in the manner described in the Letter.
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`The Fourth Circuit’s decision in Jerri’s Ceramic Arts v. Consumer Prod. Safety Comm’n,
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`874 F.2d 205 (4th Cir. 1989), confirms the point. There, the Court held that a CPSC “Statement of
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`Interpretation” that broadened the interpretation of “small parts” in children’s toys constituted a
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`legislative rule. Id. at 206. The Letter is comparable to the CPSC’s Statement of Interpretation. See
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`id. at 208 (relevant factors included altering a long-standing position, imposing new duties,
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`bringing an enormous range of persons and activities within the scope of the Department’s
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`enforcement plans, increasing enforcement, and causing alarm).
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`It is irrelevant that the Letter states that it “does have the force and effect of law.” Letter at
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`1 n.1. An agency’s “characterization of its statement as an expansion of its policy or interpretation
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`7 Defendants cite Rhea Lana, Inc. v. DOL, 824 F.3d 1023, 1028 (D.C. Cir. 2016) for the proposition that a letter
`reminding an entity of the Fair Labor Standards Act did not create “new legal obligations.” That case is easily
`distinguished here, because the DCL is not merely reminding regulated entities of the existence of Title VI. Moreover,
`in Rhea Lana, the Court ultimately found the agency’s letter was final agency action, because legal consequences
`flowed from it. Id. at 1029.
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`9
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`… does not preclude [the court] finding that it is something more.” Jerri’s Ceramic Arts, Inc., 874
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`F.2d at 207. The disclaimer Defendants rely upon, moreover, is directly contradicted by the
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`Department’s warning that it will “no longer tolerate” the activities described in the Letter and will
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`undertake enforcement actions “based on the understanding embodied in th[e] letter.” Letter at 3
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`(emphasis added). This warning is “powerful evidence” the agency intends the rule to be binding.
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`Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 18 (D.C. Cir.),
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`judgment entered, 762 F. App’x 7 (D.C. Cir. 2019).
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`As a legislative rule, the Letter should have been issued via notice and comment; because
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`it was not, the Letter can be vacated on that basis alone. See Child.’s Hosp., 896 F.3d at 623.
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`2. The Departments’ actions violate the APA
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`As an initial matter, Defendants do not defend the Certification under the APA, thereby
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`conceding it is unlawful.8 As to the Letter, Defendant’s arguments primarily rest on an atextual
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`reading of the Letter which asserts that it is in fact consistent with the Department’s prior guidance,
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`as well as their incorrect assertion that the Letter is not final agency action.
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`a. Not in accordance with law and in excess of statutory authority
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`The Department argues that the Letter merely informs schools not to discriminate, ignoring
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`the plain language of the Letter and the FAQs, which openly label diversity, equity, and inclusion
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`concepts and practices legally suspect.9 See District 4J Decl., Dkt. 31-7 (noting these concepts are
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`part of District 4J’s curriculum and school programming). In this way, the Department is exerting
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`8 See supra, note 3.
`9 For example, the Letter decries the teaching of “structural racism” and takes aim at what it calls the “toxic[]
`indoctrinate[ion] [of] students” Letter at 2, finding that ‘programs discriminate in less direct, but equally insidious,
`ways[,]” including by “teach[ing] students that certain racial groups bear unique moral burdens,” id. at 3. The FAQs,
`in turn, assert that “social-emotional learning” and “culturally responsive” teaching are “veil[ed] discriminatory
`policies.” FAQs at 5.
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`control over curricula by attempting to regulate school programming to rid it of concepts it dislikes
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`(but which have never been found to violate Title VI). Thus, the Letter is in excess of the
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`Department’s authority on the DEOA, and is in conflict with federal laws that similarly limit the
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`Department’s authority over school curricula and programming. See PI Mem. at 13 n.13, 35.10
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`b. Arbitrary and capricious
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`Defendants do not address any of Plaintiff’s arguments as to why the Certification is
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`arbitrary and capricious, and only attempt to address a fraction of Plaintiffs’ arguments regarding
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`the Letter.11
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`Departure From Prior Guidance. Defendants argue the Letter does not depart from prior
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`guidance, as their interpretation is simply applying the “longstanding principle” that policies that
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`classify based on race are unlawful unless they are justified by a fact-supported compelling
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`interest. Opp. at 21. As addressed herein, the Letter does far more than that. See also PI Mem. at
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`25-28.12
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`Defendants also baldly state that they are not required to provide an explanation for the
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`Department’s departure from prior guidance, citing no case in support. Opp. at 21. That is not the
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`10 While Defendants do not respond to any of Plaintiffs APA arguments with regard to the Certification—effectively
`waiving any argument that it is lawful under the APA—it is worth repeating that the Certification is clearly contrary
`to law insofar as it also violates the Paperwork Reduction Act. PI Cert. Mem. at 21-23.
`11 Compare Opp. at 21 (addressing departure from guidance, interpretation of SFFA, and important aspects of the
`problem) with PI Mem. at 24 (arguing the “letter is arbitrary and capricious because it fails to acknowledge or explain
`the Department’s changed position, rely on prior factual findings and available evidence, account for existing federal
`and state legal requirements, consider important aspects of the problem, and grapple with the substantial reliance
`interests”).
`12 Directly above that argument, Defendants state that DEI programs involve race consciousness, and that those
`programs (again with no specification as to the programs, or examples) “preference certain racial groups,” making
`those programs more susceptible to discriminating based on race. Opp. at 21. This statement gets to the heart of the
`confusion the Letter has introduced. Race consciousness, in and of itself, is not illegal. Nor does race consciousness
`inherently preference certain groups – but by tying these concepts together, the Department appears indicates that it
`will view anything that is race-conscious as inherently discriminatory, regardless of whether it results in differential
`treatment. The “EndDEI” portal is a manifestation of that understanding, as is the multitude of actions the
`administration has taken to eliminate any grants or funding for things that merely mention race.
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`
`11
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`

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`Case 1:25-cv-00628-SAG Document 51 Filed 04/17/25 Page 14 of 23
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`law. An agency cannot depart from prior policy sub silentio. FCC v. Fox Television Stations, Inc.,
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`556 U.S. 502, 515 (2009). Whether or not that policy was “interpretative” is not relevant.13
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`SFFA Interpretation. Defendants argue that the Letter is in fact consistent with the
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`Department’s prior guidance on SFFA. That is plainly incorrect. See supra pp. 2-3, PI Mem. 27-
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`28.
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`Important Aspects of Problem. Defendants’ only argument as to why the agency did not
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`consider the effect of the Letter on school curriculum is their assertion that the Letter does not
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`impact curriculum. That is incorrect, as described supra Sec. II.B.2.a. As to considering
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`inconsistent laws, there again, Defendants start from the proposition that the Letter is coextensive
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`with Title VI and prior department guidance, which, for the reasons described herein, is not
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`persuasive. Finally, Defendants’ argument as to the correctness of the Letter’s position on the
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`elimination of standardized testing pointedly does not address the cases Plaintiffs cite showing that
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`the Department’s current position on Title VI has been rejected by courts post-SFFA. See PI Mem.
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`at 29-31, 31 n.28. As Defendants have not rebutted Plaintiffs’ arguments, including not even
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`addressing several key points or the Certification, Plaintiffs have met their burden to show that the
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`Letter and the Certification are arbitrary and capricious.
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`C. Plaintiffs have also shown a likelihood of success on their claim that the Letter
`and Certification are unconstitutionally vague.
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`
`
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`13 See e.g., Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 217 (2016) (pointing to an opinion letter issued by the
`agency followed by an amendment to the agency’s “Field Operations Handbook" as the basis for longstanding
`guidance); Kentucky v. EPA, 123 F.4th 447, 468 (6th Cir. 2024) (explaining the “mandate to address reliance interests
`applies just as much to an agency's departure from informal guidance as it does to its departure from formal
`regulations”) (citing Perez Mortg. Bankers Ass'n, 575 U.S. 92, 105–06 (2015)); New York v. Scalia, 490 F. Supp. 3d
`748, 793 (S.D.N.Y. 2020) (finding agency action arbitrary and capricious where it failed to explain departure from
`prior interpretative guidance).
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`
`12
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`

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`Case 1:25-cv-00628-SAG Document 51 Filed 04/17/25 Page 15 of 23
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`1. The void for vagueness doctrine applies here.
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`Defendants make no persuasive arguments to avoid void for vagueness review.
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`First, as discussed above, the Letter does have the force of law and is binding on regulated
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`entities.14 Second, the void for vagueness doctrine is not limited to statutes; Defendants’ citat