Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
DOJ Revisiting Scrutiny of College and University DEI Programs
The Department of Justice (DOJ) appears to be reinvigorating its enforcement of equal employment opportunity laws in the higher ed sector by reexamining the impact diversity, equity and inclusion (DEI) programs are having on students and employees. Bloomberg reports that the DOJ’s goal appears to be “to root out race-based admission and hiring practices, reduce foreign influence on campus, and rewire how federal funding flows to top schools.”
Premier medical schools appear to be a primary target of this effort. The DOJ is also increasing investigations into international donors with the apparent goals of reducing the proportion of international students studying at American institutions and reducing the influence of other nations in shaping curriculum and research. The administration also appears to be examining programs at top-ranked law schools, as well as reviewing grants at premier institutions and examining possible shifts in funding to large public institutions.
Federal Judge Cancels ED Anti-DEI Training Grant Order
A federal judge threw out a Department of Education (ED) anti-diversity, equity and inclusion training grant order, holding that a federal agency cannot counter Congress’ mandate of diversity goals in teacher training awards. The judge concluded that federal agencies cannot terminate, reject or penalize grant applications based on the criteria Congress expressly required the agency to promote (State of California et al. v. U.S. Department of Education et al. (D. Mass. 1:25-cv-10548, order issued 9/17/26)).
The federal judge vacated the ED anti-DEI directive nationwide in a case brought by the state attorneys general of California, Colorado, Illinois, Maryland, Massachusetts, New Jersey, New York and Wisconsin. The states sued the department after it canceled more than 100 teacher training grants. The effect of this ruling on the above report regarding the Department of Justice’s efforts is unclear at this time.
EEOC Sues Harvard University in Federal Court to Enforce Subpoena Related to DEI Discrimination Investigation
The Equal Employment Opportunity Commission (EEOC) has filed suit in federal court in Massachusetts to enforce a subpoena, which Harvard University claimed was overbroad, regarding the EEOC’s investigation into whether the university’s DEI programs led to discrimination against White, Asian, male and heterosexual employees, among others (EEOC v. Harvard University (D. Mass. 1:26-mc-91522- subpoena enforcement action 9/29/26)).
The subpoena related to faculty hiring decisions and the activities of the university’s office of faculty development and diversity. The subpoena appears to be very broad and, if enforced, would include turning over hiring committee guidance and interview notes.
School Employee’s Religious Discrimination Suit Entitled to Jury Trial
A former business manager of a Pennsylvania charter school is entitled to a jury trial over her Title VII complaint that the denial of her request for an accommodation of observance of the lunar sabbath constituted religious discrimination. The business manager, who had been employed by the school for eight years, began observing the lunar sabbath toward the end of her employment. The lunar sabbath occurs on a different day each month coinciding with the new moon. On weeks in which the lunar sabbath occurs on a weekday, the plaintiff requested that day off and an accommodation to work four 10-hour days that week. The accommodation was denied on “undue hardship” grounds and the plaintiff alleged constructive discharge.
The judge denied the school’s summary judgment request holding that a jury could conclude that the plaintiff raised a claim of unlawful discrimination given the school’s denial of her accommodation request without submitting an alternative way to accommodate the situation. The judge also allowed the plaintiff’s punitive damages claim to proceed (Johnson v. York Academy Regional Charter School (M.D. Pa. No. 1:23-cv-00017, 9/23/26)).
EEOC Work-Sharing Agreements With State Agencies “Fraying”
Bloomberg reports that state and local antidiscrimination agency work-sharing agreements with the Equal Employment Opportunity Commission are under strain, especially in blue states and municipalities. Longtime partnerships between the EEOC and state and local agencies are struggling given the current EEOC’s position of not investigating disparate impact and certain gender identity claims that are the subject of state and local agency investigations.
How this will resolve is unclear at this point, but it may lead to confusion among plaintiffs and charging parties seeking to pursue claims in these areas. HR should be sensitive to these cases, which may be pursued by state and local agencies notwithstanding an EEOC position to the contrary.
Because of the unprecedented and fast-changing pronouncements of the new presidential administration and the intervening court challenges, the developments contained in this blog post are subject to change. Before acting on the legal issues discussed here, please consult your college or university counsel and, as always, act with caution.