Education Matters
Equal Protection and Title IX
Ninth Circuit Rules That Idaho Law Restricting School Restroom and Locker Room Access By Biological Sex Is Likely Constitutional.
Before July 2023, Idaho public school districts set their own policies for student access to restrooms, locker rooms, and showers. Approximately 25% of districts allowed students to use facilities corresponding to their gender identity. In March 2023, the Idaho Legislature enacted Senate Bill 1100 (S.B. 1100), which was set to take effect on July 1, 2023. The law requires public school students to use multi-occupancy restrooms and changing facilities based on their “biological sex.” S.B. 1100 includes exemptions for staff, medical personnel, and maintenance workers, but not for transgender students. The statute also creates a civil cause of action allowing students to recover $5,000 in damages from a school if they encounter a student of the opposite biological sex in one of the covered multioccupancy facilities.
The law requires schools to provide a single-occupancy facility to any student who is unwilling or unable to use a multi-occupancy facility designated for their sex. Students must submit a written request to obtain this accommodation. The statute does not limit the use of single-occupancy facilities to transgender students.
Rebecca Roe, a transgender girl entering seventh grade in the Boise School District, began her social transition in fifth grade. She sought to use restrooms and changing facilities consistent with her gender identity and alleged that S.B. 1100 would disrupt her transition, harm her mental and physical health, and risk disclosing her transgender status to peers. The Sexual and Gender Alliance (SAGA) is a student organization at Boise High School. A transgender male student and SAGA member, referred to as A.J., alleged that he and others would suffer harm from being excluded from facilities aligned with their gender identity.
On July 1, 2023, Roe and SAGA filed a lawsuit in federal district court to prevent enforcement of S.B. 1100. They named as defendants the Idaho State Superintendent of Public Instruction, members of the Idaho State Board of Education, the Boise School District, its board members, and its superintendent. Roe and SAGA argued that S.B. 1100 violated the Equal Protection Clause, Title IX, and the constitutional right to informational privacy. They asked the district court for a preliminary injunction to stop enforcement of S.B. 1100 before the start of the school year.
The district court granted a temporary restraining order to maintain the preexisting status quo while it considered the request for preliminary injunction. Defendants opposed the injunction and moved to dismiss the case. After a hearing, the district court denied the preliminary injunction. It found that Roe and SAGA had not shown a likelihood of success on the merits, had not demonstrated irreparable harm, and had not established that the balance of equities favored a preliminary injunction. The district court also denied the Defendants’ motion to dismiss, allowing the case to proceed.
Roe and SAGA appealed the district court’s denial of the preliminary injunction to the Ninth Circuit Court
of Appeals. The Ninth Circuit granted an emergency injunction which it considered the appeal. The emergency injunction remained in effect throughout the 2023–2024 school year. The Ninth Circuit later heard oral argument and affirmed the district court’s denial of the preliminary injunction.
The Ninth Circuit first considered the Equal Protection Clause claim and accessed S.B. 1100 using intermediate scrutiny. Intermediate scrutiny is the standard that the Ninth Circuit uses when a government entity classifies individuals based on sex or transgender status. Under intermediate scrutiny, the government must show that its classification serves an important governmental interest and that the means it employs are substantially related to achieving that interest. The Ninth Circuit concluded that protecting student bodily privacy in settings like locker rooms is an important government interest, and that restricting access based on “biological sex” is substantially related to that interest. It therefore held that S.B. 1100 does not facially violate the Equal Protection Clause.
The Ninth Circuit also rejected Roe and SAGA’s argument that the state could have protected privacy through less restrictive means, such as installing privacy dividers. It emphasized that intermediate scrutiny does not require the state to adopt the least restrictive or most narrowly tailored means of achieving its interest. There only needs to be a substantial relationship between the law and the state’s asserted goal.
Next, the Ninth Circuit addressed the Title IX claim. Although Ninth Circuit precedent recognizes that discrimination based on transgender status constitutes sex discrimination under Title IX, the Ninth Circuit emphasized that Title IX is Spending Clause legislation. To impose liability on states that receive federal funds, a federal statute must provide clear notice of what conduct it prohibits. This requirement ensures that states can knowingly and voluntarily accept the conditions tied to the federal funding. The Ninth Circuit concluded that neither Title IX nor its implementing regulations clearly prohibited the type of sex-segregated facility policy adopted in S.B. 1100. Therefore, the Ninth Circuit held that Idaho lacked the required notice and Roe and SAGA were unlikely to succeed on their Title IX claim.
Finally, the Ninth Circuit considered the informational privacy claim. The Ninth Circuit assumed, without deciding, that transgender status may qualify as protected personal information. However, it found no evidence that S.B. 1100 requires schools to disclose a student’s transgender status. The law allows any student to request a single-occupancy facility for any reason. Therefore, the Ninth Circuit found that using such a facility would not necessarily reveal a student’s transgender status, and Roe and SAGA were unlikely to succeed on their informational privacy claim.
The Ninth Circuit affirmed the district court’s order denying a preliminary injunction and held that plaintiffs had not shown a likelihood of success on the merits of any of their claims. It did not reach the remaining preliminary injunction factors. The underlying litigation may continue in the district court, but the appellate ruling ends the preliminary injunction phase. The emergency injunction expired upon entry of the decision.
Roe v. Critchfield (9th Cir. 2025) 131 F.4th 975.
First Amendment
Instructor’s Criticism of
Curriculum
Change is Protected First Amendment Speech.
Lars Jensen is a mathematics instructor at Truckee Meadows Community College (TMCC), which is part of the Nevada System of Higher Education (NSHE). In June 2019, the NSHE Board of Regents adopted a new “co-requisite policy.” Under the policy, students needing remedial math instruction would no longer need to complete remedial courses before enrolling in college-level math. Instead, they could take both the remedial course and the collegelevel math course simultaneously. To support this model and maintain course completion rates, TMCC’s math department decided to lower the academic level of certain math classes.
On December 18, 2019, Jensen sent an email to the math faculty expressing concern about the department’s new academic standards. On January 21, 2020, Julie Ellsworth, Dean of Sciences at TMCC, facilitated a “Math Summit” to discuss the co-requisite policy. During a question and answer session after Ellsworth’s presentation, Jensen attempted to comment on the policy. Ellsworth cut him off and ended the session. When he attempted to speak again, she directed him to use the “parking lot,” a whiteboard designated for posting further comments.
Jensen then went to his office and prepared a one-page handout titled “On the Math Pathways — Looking Under the Hood.” The handout criticized the department’s decision to “lower the academic level of Math 120 so students will be able to complete the course at current rates.” Jensen argued that this would impact 31% of TMCC’s degree and certificate programs by reducing graduates’ math and technical skills. He said this would impact the community, noting that local employers subsidize TMCC through taxes and expect to be able to hire qualified graduates in return.
Jensen returned to the Summit and began distributing copies of his handout during breaks. When he began handing out the document in Ellsworth’s room, she picked up the copies he had distributed and motioned for participants to hand theirs to her. Jensen told Ellsworth it was break time and that he was not being disruptive. She told him not to distribute the handout. Jensen left and passed out his handout in other rooms. He then returned to Ellsworth’s room and attempted to distribute his handout again. Ellsworth directed him to stop. They went into the hallway to talk and Ellsworth accused Jensen of disobeying her, called him a bully, said his conduct was disruptive, and said he had “made an error by defying her.”
One week after the Math Summit, Ellsworth issued Jensen a notice of proposed reprimand for insubordination. The official letter of reprimand was placed in his personnel file on March 30, 2020. Soon after, Jensen sent an email to all TMCC faculty titled “Lowering Standards is Criminal — Literally.” The email argued that faculty were failing to uphold instructional standards required by the NSHE Handbook. About a week later, Ellsworth pressured Jensen to resign from another professor’s tenure committee. She also raised issue with his syllabus policies, calling them “punitive,” even though other math faculty used similar policies.
During Jensen’s 2019 to 2020 annual performance evaluation, the department chair recommended that Jensen be rated “excellent 2.” Ellsworth instead rated him “unsatisfactory,” the lowest possible score, citing insubordination at the Math Summit and the syllabus issue. During the following year’s annual evaluation, the department chair recommended an “excellent” rating for Jensen. Dean of Math and Physical Sciences Anne Flesher, who had attended
the Math Summit and had criticized Jensen during the event, disregarded the recommendation and rated Jensen “unsatisfactory,” and identified minor performance issues. Jensen alleges the college ranked him on criteria that it had not applied to other faculty.
Under NSHE policy, receiving two consecutive “unsatisfactory” evaluations triggers a disciplinary hearing to determine whether the college should terminate the faculty member. TMCC President Karin Hilgersom appointed TMCC administrator Natalie Brown to investigate Jensen. TMCC held a termination hearing. Jensen alleged that the investigation and hearing process violated procedures under the NSHE Handbook.
Lars Jensen then filed a lawsuit against several TMCC and NSHE administrators. He brought First Amendment retaliation claims against the administrators in their official and personal capacities. He also brought procedural due process and equal protection claims against them in other personal capacities only.
The defendants asked the trial court to dismiss the case. They argued that the official-capacity claims were barred by sovereign immunity and the personal claims were barred by qualified immunity. The district court agreed and dismissed all claims without leave to amend. Jensen appealed.
The Ninth Circuit Court of appeals first addressed Jensen’s First Amendment retaliation claim. The Ninth Circuit applied the five-part test from Pickering v. Board of Education, 391 U.S. 563 (1968), which assesses: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the protected speech was a substantial or motivating factor in the adverse action; (4) whether the state had an adequate justification for treating the employee differently from a member of the public; and (5) whether the employer would have taken the same action even without the speech. Only the first four prongs were at issue on appeal.
The Ninth Circuit found that Jensen’s criticism of the math curriculum addressed a matter of public concern. The Ninth Circuit noted that Jensen’s criticism focused on academic standards, student learning, and the effect lower standards would have on the community. It relied on past precedent, Demers v. Austin, 746 F.3d 402 (9th Cir. 2014), to conclude that the First Amendment protected Jensen’s statements under even if he made them as part of his professional role.
The Ninth Circuit then found that Jensen had plausibly alleged that his speech was a motivating factor in the adverse actions he experienced. The Ninth Circuit further concluded that the defendants had not shown, at the pleading stage, any actual or predicted disruption that would justify the adverse employment actions.
The Ninth Circuit also held that the law protecting a professor’s right to criticize curricular changes was clearly established at the time of the events. It explained that the precedent from Pickering, Demers, and other cases had already made clear that public college faculty have a First Amendment right to speak on matters of curriculum, particularly when such speech relates to scholarship and teaching. The Ninth Circuit found that Jensen’s speech fell within this protected category and the retaliation he faced was significant and plausibly linked to that speech. Therefore, the Ninth Circuit concluded that a reasonable official in the defendants’ position would have known that their conduct violated clearly established constitutional rights.
The Ninth Circuit explained that the Eleventh Amendment sovereign immunity doctrine generally bars suits against state officials in their official capacities, unless a recognized exception applies. However, under Ex parte Young, 209 U.S. 123 (1908), plaintiffs may seek prospective relief, such as an injunction or declaratory judgment, against state officials to prevent ongoing violations of federal law. The Ninth Circuit held that Jensen’s requests for expungement of negative personnel records, an injunction against retaliatory practices, and a declaratory judgment were forms of prospective relief. Therefore, sovereign immunity did not block the relief Jensen requested.
The Ninth Circuit affirmed the dismissal of Jensen’s due process and equal protection claims, finding that he had not adequately identified a constitutionally protected liberty or property interest. However, the Ninth Circuit held that the district court had abused its discretion in denying Jensen leave to amend those claims. The Ninth Circuit emphasized that leave to amend should be granted freely, especially where, as here, the case was dismissed at the pleading stage.
The Ninth Circuit reversed the district court’s dismissal of Jensen’s First Amendment claims. The Ninth Circuit remanded the case to the district court for further proceedings, including the opportunity for Jensen to amend his due process and equal protection allegations.
Jensen v. Brown (9th Cir. 2025) 131 F.4th 677.
Ninth Circuit Bars Claim That Officials Retaliated Against University Employee Over His Spouse’s Speech.
From 2015 to 2019, Anthony DeFrancesco served as the Senior Director of Operations at the University of Arizona Health Sciences (UAHS). His husband, Gregg Goldman, was UAHS’s Senior Vice President and Chief Financial Officer. In 2017, UAHS President Robert Robbins initiated a search for a new Senior Vice President and selected Michael Dake as his preferred candidate. Robbins described Dake as his “longest, best and dearest friend.” Goldman co-chaired the search committee and opposed Dake’s candidacy. He reported that Dake performed poorly in interviews, lacked academic administrative experience, exhibited overconfidence, and faced prior allegations of unethical billing and research practices. Goldman told Robbins that he believed the hiring process was compromised and that selecting Dake would be a serious mistake.
After Robbins selected Dake for the position in March 2018, he told Dake that Goldman had opposed his candidacy. Robbins also told Dake that Goldman’s husband, DeFrancesco, held an executive position at UAHS and that Dake had the authority to fire him.
After assuming his role, Dake told DeFrancesco that he was fired and needed to reapply for his position, though no formal termination occurred at that time. Dake later refused to promote DeFrancesco to a role whose duties he was already performing. Dake told DeFrancesco that, now that his husband had left the University, he had a “decision to make.” DeFrancesco alleged that Dake undermined him in meetings with senior staff, ignored him, and bypassed him by communicating directly with his subordinates. Dake formally terminated DeFrancesco effective June 30, 2019.
In January 2020, DeFrancesco filed a lawsuit in the U.S. District Court for the District of Arizona against the Arizona Board of Regents and Robbins and Dake in their individual capacities. DeFrancesco alleged that Robbins and Dake retaliated against him in violation of the First Amendment based on his husband’s protected speech. He also alleged that they harassed and fired him because of his sexual orientation, in violation of the Equal Protection Clause and Title VII.
Robbins and Dake filed a motion to dismiss the case. They argued that DeFrancesco failed to state a First Amendment claim and that qualified immunity shielded them from liability. The district court granted the motion. It found that the First Amendment did not clearly prohibit retaliation against a public employee based on a relative’s speech and that Goldman’s statements were not protected because he spoke in his official capacity. The district court dismissed all claims, including the equal protection and Title VII claims. DeFrancesco appealed.
In January 2023, the Ninth Circuit affirmed the dismissal of the equal protection and Title VII claims. It held that DeFrancesco had not plausibly linked his sexual orientation to his termination. However, the Ninth Circuit reversed the denial of leave to amend the First Amendment claim and remanded the case for further proceedings.
In March 2023, DeFrancesco filed a Second Amended Complaint. He alleged that Goldman, in his personal capacity, reported corruption and cronyism in the hiring process for the UAHS Senior Vice President role. He claimed that Robbins and Dake retaliated against him because of that speech.
Robbins and Dake again moved to dismiss the case. The district court granted the motion. It held that Goldman’s speech qualified as citizen speech on a matter of public concern. However, it found no clearly established law, that recognized a First Amendment retaliation claim based on a spouse’s protected speech. The district court ruled that Robbins and Dake were entitled to qualified immunity. DeFrancesco appealed.
The Ninth Circuit affirmed the district court’s dismissal. It applied the two-step qualified immunity test, which asks: (1) whether the plaintiff alleged facts that make out a violation of a constitutional right, and (2) whether the right was clearly established at the time of the challenged conduct. The Ninth Circuit concluded that Robbins and Dake were entitled to qualified immunity because the law in June 2019 did not clearly prohibit the type of retaliation DeFrancesco alleged. It declined to decide whether the First Amendment protects public employees from retaliation based on a relative’s speech.
The Ninth Circuit recognized that the Second, Sixth, and Eighth Circuits had acknowledged or assumed that the First Amendment could bar retaliation based on a family member’s speech. It also noted that several district courts in the Ninth Circuit had allowed similar claims to proceed. However, it found no binding precedent or robust consensus sufficient to put the constitutional question “beyond debate.”
The Ninth Circuit affirmed the dismissal of DeFrancesco’s First Amendment claim.
DeFrancesco v. Robbins (9th Cir. May 7, 2025, No. 23-16147) 2025 U.S. App. LEXIS 10985.
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Ethan Wicklund is an Associate in the San Francisco office of Liebert Cassidy Whitmore, where he represents clients in labor and employment matters.
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Sandra I. Herrera is Senior Counsel in the Los Angeles office of Liebert Cassidy Whitmore, where she provides legal counsel to clients on a wide range of transactional, business and facilities, and corporate governance matters.
Kim Catacutan is an experienced human resources professional currently serving as a Classification & Compensation Consultant in the Sacramento office of Liebert Cassidy Whitmore.
Education Code
Court Affirms Limits on Arbitrating Education Code Disputes.
The Los Angeles College Faculty Guild, AFT Local 1521 (Guild) filed three grievances against the Los Angeles Community College District on behalf of faculty members at different campuses.
Julie Washenik and Christine Park, faculty at Los Angeles City College, filed a grievance alleging that the District failed to complete several safety-related construction projects, such as emergency lighting, security cameras, locks, and fencing. They claimed this violated the collective bargaining agreement and asked the District to complete the projects by February 2023. The District denied the grievance, explaining that it had already funded the projects using bond proceeds from voter-approved Measures CC and LA and that it was progressing in accordance with applicable building codes and state oversight.
Michael Williams, a Pierce College faculty member, filed a grievance after the District notified him that it would not renew his specially funded faculty position for the 2023–24 academic year. Williams argued that he had a right to continued employment under Education Code section 87470, and alternatively, that he held tenure, which protected him from dismissal absent cause under section 87732. He claimed the District violated both the Education Code and internal Human Resources policies. He requested reinstatement, full benefits, and tenure status. The District denied his grievance, stating that Williams held a non-tenure-track position that ended when its funding expired.
Pavel Karasik, a faculty member at Los Angeles TradeTechnical College, filed a grievance after CalPERS determined he lacked sufficient service credit to qualify for retirement. Karasik alleged that the District misreported his earnings, which lead to the CalPERS denial. He sought corrected reporting to CalPERS, backpay for unpaid wages since 2017, and the right to
review recalculated data before submission. The District responded that CalPERS, not the District, determines service credit and retirement eligibility. It explained that it was already working with CalPERS to resolve any reporting issues and directed Karasik to address further concerns with the agency.
After the District denied the grievances, the Guild’s internal committee voted to proceed with arbitration under Article 28 of the CBA. The District refused, arguing that none of the disputes fell within the agreement’s scope for arbitration. The Guild then filed a petition in superior court to compel arbitration under Code of Civil Procedure sections 1281 and 1281.2.
The trial court granted the petition in part. It ordered arbitration for the backpay portion of the Karasik grievance but denied arbitration for the remaining claims, finding them outside the CBA’s arbitration agreement’s scope. The Guild appealed.
The court of appeal affirmed the trial court’s decision. It held that the Guild failed to show that two of the three grievances involved matters subject to arbitration under the Educational Employment Relations Act (EERA), which governs collective bargaining for public school employees. EERA limits bargaining to specific employment terms such as wages, hours, and working conditions. It also includes a “non-supersession clause,” which prohibits CBAs from overriding the Education Code.
For the City College safety grievance, the court of appeal found that the Guild framed the complaint as a safety issue, but in substance, it challenged the District’s administration of bond-funded construction projects. These projects are governed by the Construction Bonds Act, codified in Education Code section 15264, which regulates how school districts must use voter-approved bond funds. Because the grievance sought to influence how the District conducted construction projects under this Act, the court of appeal held that the Education Code preempted the grievance so it was not arbitrable.
The court of appeal reached the same conclusion for Williams’ Pierce College grievance about his employment nonrenewal. The court of appeal held that Williams’ employment status, based on a specially funded position, fell outside EERA’s scope of representation. Resolving the grievance would require interpreting Education Code provisions on faculty employment and dismissal, which the CBA’s arbitration agreement did not authorize.
The court of appeal found that Karasik’s grievance about his CalPERs denial fell partly within the CBA’s arbitration agreement. The court of appeal held that the question of whether Karasik was entitled to backpay based on the District’s alleged reporting errors was arbitrable. However, it held that the other remedies Karasik sought, such as ordering the District to revise data submitted to CalPERS and to allow pre-submission review, exceeded the arbitrator’s authority. The court of appeal emphasized that the Public Employees’ Retirement Law (Gov. Code section 20000 et), which governs CalPERS, controls service credit determinations. The CBA’s arbitration agreement did not permit arbitrators to issue injunctive relief, only limited monetary remedies.
The court of appeal upheld the trial court’s ruling. It affirmed the denial of arbitration for the safety and employment termination grievances and allowed arbitration only on the limited issue of backpay in the retirement benefits grievance.
Los Angeles College Faculty Guild v. Los Angeles Community College Dist. (Apr. 10, 2025, No. B339084) ___Cal.App.5th___ [2025 Cal. App. LEXIS 286].
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Expense Reimbursement
Labor Code Expense Reimbursement Requirements Do Not Apply To Public Employers.
In March 2020, the Board of Trustees of the California State University mandated remote instruction due to the COVID-19 pandemic. Patrick Krug, a biology professor at CSU Los Angeles, followed CSU’s direction to teach remotely. Since he was denied access to his workplace office to retrieve his CSU-provided computer and printer, he paid to replace these items himself. CSU denied his request for reimbursement.
California Labor Code section 2802 obligates an employer to “indemnify [an] employee for all necessary expenditures… incurred… in direct consequence of the discharge of his or her duties”. Krug filed a class action complaint against CSU to seek section 2802 reimbursements for home-office expenses for himself and other CSU employees. Krug alleged that he incurred necessary business expenses for electricity, postage, internet service charges, use of personal phones for work related purposes, computers, and office supplies and furniture. CSU argued that Labor Code section 2802 did not apply because the law infringed on its sovereign powers.
The trial court sustained CSU’s demurrer without leave to amend, reasoning that as a governmental agency, CSU was exempt from Labor Code section 2802 because that section did not expressly apply to public employers. Krug appealed.
The court of appeal affirmed the trial court’s decision, holding that Labor Code section 2802 did not obligate CSU to reimburse employees for work-related expenses. The court of appeal found nothing in the law or its legislative history that indicates that section 2802 applies to public employers. The court of appeal also noted that applying Labor Code section 2802 to CSU would infringe on its sovereign powers under the Education Code to set its own equipment reimbursement policies.
The California Supreme Court granted review and remanded the case for reconsideration in light of its 2024 decision in Stone v. Alameda Health System. The Stone decision generally holds that public entities are not subject to Labor Code provisions unless the provision expressly applies to public entities.
On remand, the court of appeal concluded that the Legislature intended to exclude government employers from the terms of section 2802, based on its legislative history and a later amendment. Also, the court of appeal found that no prior case had applied the section 2802 reimbursement obligations to a public employer. Therefore, the court of appeal concluded that Labor Code section 2802 does not obligate public employers like CSU to reimburse employees for work-related expenses.
Krug v. Board of Trustees of California State University (2025) 110 Cal.App.5th 234.
Legal Updates
Weekly Executive Order Roundups.
Since taking office, President Trump has issued a series of executive orders, several of which have direct implications for public agencies, including institutions of public education. In light of the volume and rapid issuance of executive orders, beginning in early February, LCW launched a weekly roundup of new executive orders that may impact public agency clients, including those in public education.
Our Week 12 Executive Order Roundup describes multiple EOs, including the following, which are likely to be of particular interest to educational institutions:
• Update: Federal Courts Halt Enforcement of Department of Education DEI Guidance Letter and Certification Requirement (April 24, 2025): 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 antidiscrimination 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.
• Executive Order: 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.
• Executive 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.
Executive Order: 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.
• Executive Order: 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 section 1011f.)
Our Week 13 Executive Order Roundup describes multiple education-related updates, including the following:
• Executive Order: Protecting American Communities from Criminal Aliens (April 28, 2025): On April 28, 2025, President Trump issued an Executive Order invoking federal authority over immigration, national security, and foreign policy.
The Order directs the Attorney General, in coordination with the Secretary of Homeland Security, to publish a list of local and state sanctuary jurisdictions within 30 days and notify those jurisdictions of their obstruction of federal immigration law.
The Order directs the head of all federal agencies to identify and consider suspending or terminating all federal funding to jurisdictions on the list.
The Secretary of Homeland Security must also develop a mechanism to ensure that individuals who receive federal public benefits from private entities in sanctuary jurisdictions are subject to appropriate eligibility verification (i.e., verification of immigration status).
Finally, the Order directs the Attorney General to take appropriate action to stop the enforcement of laws and practices “favoring aliens over any groups of American citizens,” including, specifically, state laws that provide in-state higher education tuition to undocumented students, but not out-of-state American citizens.
This Order is likely to have an imminent impact on both the state of California and cities and counties that are designated as sanctuary jurisdictions. These jurisdictions will likely receive a notice of noncompliance from the federal government in approximately one month and may be at risk of losing federal funding thereafter. If the Attorney General chooses to prosecute California for its implementation of Assembly Bill 540, which allows undocumented students to qualify for in-state tuition at public colleges and universities, California community colleges, CSU’s, and UC schools will be impacted. LCW will continue to monitor developments.
• Executive Order: Establishment of the Civil Liberty Commission (May 1, 2025): On May 1, 2025, President Trump issued an Executive Order intended to protect and promote religious liberty. The Order establishes the Religious Liberty Commission, composed of Presidentially appointed representatives and advisory boards, to study the state of religious freedom in the U.S., identify emerging threats, and to recommend strategies and actions to preserve religious freedom.
The Commission will advise the White House and other agencies, and produce a comprehensive report of its findings by July 4, 2026.
Among its responsibilities, the Commission is tasked with studying and making recommendations on a range of issues, including the First Amendment rights of teachers, employers, employees, and faith-based entities, parental authority in choosing religious education for their children, and accommodating voluntary prayer and religious instruction at public schools.
LCW will provide updates regarding any Commission activity related to public employers, private and public schools, and nonprofits.
U.S. Department of Transportation Cancels $54 Million in University Grants Related to DEI and Climate Research.
On May 2, 2025, U.S. Transportation Secretary Sean P. Duffy announced the cancellation of seven university grants totaling $54 million, asserting that they funded diversity, equity, and inclusion (DEI) and environmental initiatives unrelated to core transportation goals. Labeling the projects as wasteful and ideologically driven, Secretary Duffy stated that the Department of Transportation would instead focus on safety and infrastructure. The terminated grants supported research on equitable decarbonization, transportation inequities, mobility for disadvantaged communities, and environmental justice, among other topics, at institutions including UC Davis, City College of New York, USC, NYU, San Jose State, University of New Orleans, and Johns Hopkins University.
U.S. Department of Education Issues Dear Colleague Letter on Changing Accrediting Agencies.
On May 1, 2025, the U.S. Department of Education issued Dear Colleague Letter GEN-25-03, to provide updated guidance on how institutions of higher education may change or add accrediting agencies. The letter restates the requirements under 34 CFR section 600.11 and supersedes previous guidance (GEN-22-10 and GEN-22-11). It emphasizes that institutions must notify the Department in writing as soon as possible and submit a “Reasonable Cause Request Certification” documenting prior accreditation and the justification for the change. The Department emphasized that it will conduct an expeditious review of applications and generally approve such changes unless disqualifying conditions apply. It clarified that institutions have broad discretion in choosing accreditors and that the Department may not interfere where state laws require a change. The Department stated that its role is limited to ensuring compliance with federal law and that it does not have the authority to restrict institutional autonomy or innovation.
U.S. Department of Education’s Office for Civil Rights Rinds University of Pennsylvania violated Title IX by Allowing Transgender Student Athletes to Compete in Women’s Sports.
On April 28, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that the University of Pennsylvania violated Title IX by allowing male-to-female transgender student athletes to compete in women’s intercollegiate athletics and use women-only intimate facilities. OCR concluded that doing so denied other women equal athletic opportunities. OCR issued a proposed Resolution Agreement requiring the University to: “(i) issue a statement to the University community stating that the University will comply with Title IX in all of its athletic programs; (ii) restore to all female athletes all individual athletic records, titles, honors, awards or similar recognition for Division I swimming competitions misappropriated by male athletes competing in female categories; and (iii) send a letter to each female athlete whose individual recognition is restored expressing an apology on behalf of the University for allowing her educational experience in athletics to be marred by sex discrimination.” OCR gave the University ten days to accept the resolution or face potential referral to the U.S. Department of Justice for enforcement action.
U.S. Department of Education and U.S. Department of Health and Human Services Announce Investigations of Harvard University and Law Review.
On April 28, 2025, the U.S. Departments of Education and U.S. Department of Health and Human Services announced Title VI investigations into Harvard University and the Harvard Law Review based on allegations of race-based discrimination in the journal’s membership and article selection processes. The investigations stem from reports that editors made decisions based on authors’ race, including concerns over a submission’s review being expedited due to the author’s minority status and an editor’s statement expressing concern that most respondents to a police reform article were white men. The agencies will examine Harvard’s relationship with the journal, including financial support, oversight procedures, selection policies, and editorial practices. The investigations are being conducted under Title VI of the Civil Rights Act of 1964, which prohibits race-based discrimination by recipients of federal financial assistance.
New Co-Managing Partners!
LCW is pleased to announce the appointment of Michael Youril as Co-Managing Partner of our Fresno office and Gage Dungy as Co-Managing Partner of our Sacramento office. Both will serve alongside Shelline Bennett, who continues in her role as Co-Managing Partner for each office.
This enhanced leadership structure reflects our commitment to providing strong, locally informed support to clients across the Central Valley and Northern California. Michael and Gage bring deep experience and a shared dedication to client service, which will complement Shelline’s ongoing leadership and guidance.
The new structure also allows Shelline to play a key role in supporting the growth of our expanding Investigations Practice Group, while remaining actively engaged in the management and success of both offices.
If you work with our Fresno or Sacramento teams, we encourage you to reach out and connect with them as they step into these new roles—we’re excited for what’s ahead and remain committed to delivering the highest level of service to our clients.
benefits corner
Court Orders IRS to Refund ACA Penalty Payment to Employer
Because HHS Did Not Provide Required Certification.
Faulk, a janitorial services company, stopped providing minimum essential health insurance coverage to its employees in 2019. On December 1, 2021, the Internal Revenue Service (IRS) issued a Letter 226-J to Faulk proposing an excise tax known as the Employer Shared Responsibility Payment (ESRP) for tax year 2019 because Faulk failed to offer its full-time employees minimum essential coverage under the Affordable Care Act (ACA). The Letter 226-J provided a preliminary calculation of the ESRP at $205,621. The Letter 226-J also purported to serve as “certification” that at least one of Faulk’s full-time employees enrolled in health coverage provided by the Exchange.
Faulk disagreed with the proposed ESRP but paid the amount under protest. Faulk then sought a refund from the IRS but received no response. In June 2024, Faulk filed a lawsuit again the United States Department of Health and Human Services (HHS) and IRS (collectively the Government) for violating its due process rights. Specifically, Faulk alleged that the Government improperly categorized the Letter 226-J as a “certification” that at least one of Faulk’s full-time employees enrolled in health coverage provided by the Exchange. The Letter 226-J “certification” came from the IRS, whereas Fault argued it was required to come from HHS before the ESRP could be assessed.
The ACA requires applicable large employers (employing fifty or more full-time equivalent employees) to provide their full-time employees with minimum essential
coverage. The ESRP is triggered when: (1) an employer fails to offer substantially all of its full-time employees the opportunity to enroll in minimum essential coverage for any month; and (2) if “at least one full-time employee of the applicable large employer has been certified to the employer” under ACA section 1411 as having enrolled in the Exchange (i.e., Covered California in California) for such month. Based on the second requirement, the employer must receive certification of the failure to provide coverage before the IRS may assess an ESRP.
The issue in the lawsuit was which agency could issue the certification. HHS delegated authority to the IRS to issue the certification, which the IRS purports to do through Letter 226-J. However, Faulk argued that the certification must come from HHS based on the statutory language.
After considering multiple interpretations of the ACA, the district court agreed with Faulk. The district court interpreted the ACA as giving HHS the exclusive authority to issue the certification based on ACA section 1411 and Internal Revenue Code section 4980H. The ACA requires HHS to issue a certification notifying an employer that at least one full-time employee has enrolled in the Exchange before the IRS enters the picture and assesses the ESRP. As a result, HHS cannot delegate the certification requirement to the IRS.
Since the district court found that the IRS could not issue the certification, the IRS’s Letter 226-J did not serve as certification to Faulk, and therefore, not all of the due process requirements had been met before assessing the ESRP. The Court ordered the IRS to refund Faulk the entire $205,621 ESRP.
Faulk Company, Inc. v. Becerra, 2025 U.S. Dist. LEXIS 68580, 2025 WL1085080 (N.D. Tex. 2025)
Note:
This case brings into question whether any of the Letters 226-J the IRS has issued to applicable large employers assessing the ESRP are valid. While the Faulk case was in the Northern District of Texas, which does not hold precedent in a federal district court located in California, it brings forth an argument any applicable large employer could bring to challenge a Letter 226-J anywhere in the country. Based on this case, HHS and the IRS may modify their procedures so that certifications come from HHS before the IRS proposes and assesses the ESRP.
Benefits Compliance Question.
Question: If an employee is on Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) leave for their own serious health condition and receiving State Disability Insurance (SDI) or some other form of paid disability benefits, can the employer require them to use their paid time off, sick leave, or vacation to make up the rest of their wages?
Answer: No, the employer cannot require an employee to integrate accrued paid leaves with paid disability benefits if the employee does not want to use such leave. When an employee is on FMLA/CFRA leave and is receiving paid disability leave through a short- or long-term disability leave plan, such as SDI, the employee is not considered to be on “unpaid leave.” (2 C.C.R. section 11092(b)(2).) As a result, the employer cannot unilaterally require the employee to use paid time off, sick leave, or accrued vacation. The employee and employer may mutually agree to integrate accrued paid leaves with the paid disability benefits, but if the employee declines to do so, the employer cannot require it.
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Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question: Answer:
A Community College District client asked whether the Board was legally required to approve the dismissal of a probationary classified employee if there is no Board Policy or Administrative Procedure in place specifying such a requirement.
The LCW attorney advised the client that unless they have a rule requiring Board approval, the Board does not have to approve the dismissal of a probationary classified employee. Generally, the dismissal is presented to the Board for ratification as part of the personnel report they approve. The attorney advised the client to carefully review their personnel rules to determine whether Board approval is required. The personnel rules may include procedural requirements for terminating probationary employees, and it is important to follow those rules closely.
Liebert Cassidy Whitmore