Zack De Piero v. Penn State: Claims, Summary Judgment, Appeal

Zack De Piero v. Penn State is a federal lawsuit filed in June 2023 by a former Penn State Abington English professor who alleged that the university’s diversity, equity, and inclusion programming created a racially hostile work environment for him as a white faculty member and that administrators retaliated when he complained. A federal district court dismissed every one of his claims by April 2025. He appealed to the U.S. Court of Appeals for the Third Circuit, which heard oral arguments on March 18, 2026 and has not yet ruled.¹

Who Zack De Piero Is

De Piero earned a doctorate from UC Santa Barbara in 2017 and joined Penn State Abington in 2018 as a non-tenure-track assistant teaching professor of English and composition. He resigned on August 2, 2022, writing in his resignation letter that he would “turn my attention to advocating for these principles from outside the Penn State University system.”² He then took a position as an assistant professor of English at Northampton Community College in Pennsylvania’s Lehigh Valley and, at 40 years old, filed suit against Penn State in the Eastern District of Pennsylvania on June 14, 2023.³

What He Alleged

The complaint identified twelve incidents between 2018 and 2022 that De Piero said amounted to racial harassment of white faculty. He described campus programming, departmental emails, and training sessions that he characterized as promoting “race-essentialist ideology.”⁴

Among the specific episodes he cited:

A June 2020 required “Conversation on Racial Climate” Zoom forum held after the murder of George Floyd, in which Assistant Vice Provost Alina Wong led a breathing exercise instructing “White and non-Black people of color to hold it just a little longer — to feel the pain.”⁵
At least four training sessions in 2020 and 2021, including a presentation on “White Language Supremacy,” hypothetical scenarios in which perpetrators were always white, and a video titled “White Teachers Are a Problem.”⁵
Supervisor comments about “race conscious grading” and about white faculty “unwittingly reproducing ‘racist discourses and practices’ in the classroom.”⁵
An exchange in which an Affirmative Action Office staffer told him “There is a problem with the white race” and encouraged him to keep attending anti-racism workshops.⁵

De Piero also alleged he was pressured to abandon consistent grading standards and to penalize students of East Asian and Indian origin in order to equalize outcomes between racial groups.⁶

On top of the hostile work environment claim, he alleged retaliation. Beginning in April 2021 he filed complaints with the EEOC and the Pennsylvania Human Relations Commission, along with an internal bias report to Penn State’s Affirmative Action Office.⁷ As retaliation, he pointed to a “Performance Expectations” memorandum placed in his personnel file in January 2022, a downgraded annual performance review, a bias report filed against him by a colleague, and the university’s attempt to claw back $3,386.47 in pay after his resignation.⁸

How the District Court Ruled

January 2024: Most Claims Dismissed, Harassment Claim Survives

Judge Wendy Beetlestone of the Eastern District of Pennsylvania ruled on Penn State’s motion to dismiss on January 11, 2024. She dismissed the disparate treatment claims, the Title VI claims, the equal benefit clause claim under 42 U.S.C. § 1981, and the First Amendment retaliation claim. She let the hostile work environment claim proceed, finding that the allegations “plausibly amount to ‘pervasive’ harassment.”⁹

One line from that opinion became a touchstone in the national debate over DEI training. Judge Beetlestone wrote: “When employers talk about race — any race — with a constant drumbeat of essentialist, deterministic, and negative language, they risk liability under federal law.”⁹ She also clarified that discussing racism or concepts like “white privilege” in educational settings does not inherently violate federal law, but that “the way these conversations are carried out in the workplace matters.”¹⁰

March and April 2025: Summary Judgment for Penn State

After discovery, Judge Beetlestone granted summary judgment to Penn State in March 2025 on the surviving hostile work environment claim, concluding that the conduct De Piero described was not “severe or pervasive” enough to be actionable.⁴ The court found that most of what De Piero cited was voluntary, campus-wide programming or generalized academic discussion rather than conduct directed at him personally, and wrote that the events, “while unpleasant to him, share little in common” with recognized hostile work environments involving racial slurs, threats, or physical intimidation.¹¹ The opinion also observed that many of the trainings he challenged were voluntary and that he had chosen to attend them or sought out recordings of sessions he missed.

In April 2025 the court granted summary judgment on the remaining retaliation claims, ruling that De Piero had failed to show any “materially adverse” employment action. Despite his complaints, he was not fired, his pay was not cut, his contract was renewed for the 2022 academic year, and he received a raise.⁸ The case was terminated at the district court on April 16, 2025.¹²

The Third Circuit Appeal

De Piero appealed to the U.S. Court of Appeals for the Third Circuit, where the case is docketed as No. 25-1952.¹³ The Mountain States Legal Foundation took over as lead counsel on appeal, with Senior Counsel James Kerwin arguing the case in partnership with the advocacy organization Fair for All. MSLF filed its opening brief on August 13, 2025 and a reply brief on November 14, 2025.¹⁴ At the district court level, De Piero had been represented by Michael Allen and Samantha Harris of Allen Harris Law through the Foundation Against Intolerance and Racism.¹⁵

On appeal, De Piero’s team argues the district court committed a “grievous error” in finding that no reasonable jury could view Penn State’s conduct as unlawful. They ask the Third Circuit to treat the twelve incidents as a “continuum of harassment” rather than isolated events, and they challenge the district court’s reliance on Diemert v. City of Seattle, which involved similar DEI-related hostile work environment claims. The appeal also reasserts the First Amendment retaliation claim, arguing that Garcetti v. Ceballos should not apply in the academic context because the Supreme Court in that decision explicitly declined to extend its analysis to speech related to scholarship or teaching.¹⁶

The Equal Protection Project filed an amicus brief on August 20, 2025 supporting De Piero, arguing that mandatory DEI training can produce racial suspicion and intergroup hostility, and citing a 2024 study from the Rutgers University Network Contagion Research Laboratory.¹⁷

Oral Argument

The Third Circuit heard oral argument on March 18, 2026 before a panel of Judges Paul Brian Matey, Wendy Beetlestone (sitting by designation from the district court), and Cindy Kyounga Chung.¹ James Kerwin argued for De Piero and James Keller argued for Penn State.¹⁸

Reports from the hearing indicated De Piero gained some traction. One judge criticized Penn State’s attorney for framing the case as a broad attack on DEI programs, and the panel questioned whether the lower court should have resolved certain factual questions at summary judgment rather than sending them to a jury. A judge asked why the question of whether the university’s actions constituted “academic dialogue” or discriminatory conduct wasn’t for a jury to decide.¹ Penn State argued that the lawsuit was a “polemic” against DEI and that its actions were based on De Piero’s “unprofessional conduct” during a specific October 2021 meeting, not on his race or his complaints.¹⁸

As of mid-2026, the Third Circuit has not issued a ruling.

Why the Outcome Matters

Judge Beetlestone’s January 2024 opinion gave both sides of the DEI debate something to cite. For critics of DEI programming, the ruling signaled that a sustained pattern of “essentialist, deterministic, and negative language” about any race can expose an employer to Title VII liability even when individual sessions fall short of harassment.¹⁰ For defenders of DEI programming, the 2025 summary judgment rulings affirmed that uncomfortable academic conversations about race do not, on their own, constitute workplace harassment.¹¹

The Third Circuit’s decision will set the terms going forward. A reversal that sends the case to a jury would establish that DEI programming at public universities may be tested under the same hostile work environment framework applied to racial slurs and overt discrimination. An affirmance would reinforce the district court’s position that generalized campus programming about race, even programming some employees find offensive, does not rise to the level of actionable harassment under Title VII.

1
Law360. White Ex-Penn State Prof Gets Traction in 3rd Circ. Bias Fight
2
Centre Daily Times. White Professor Resigns, Alleges Reverse Discrimination at Penn State
3
Inside Higher Ed. White Professor Resigns, Alleges Reverse Discrimination
4
LCW Legal. Court Rules That Academic Discussions About Race Did Not Create Hostile Work Environment
5
The Atlantic. DEI Lawsuit Penn State
6
Duke Law Campus Speech Project. De Piero v. Penn State University
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Georgetown Free Speech Project. Penn State Professor Resigns, Sues University for Reverse Racial Discrimination
8
Jackson Lewis. De Piero v. Pennsylvania State University, Court Opinion
9
Reason (Volokh Conspiracy). Employers Talking About Race With a Constant Drumbeat of Essentialist, Deterministic, and Negative Language Risks Racial Harassment Liability
10
Forbes. DEI Practitioners Have a Lot to Learn From Professor Zack DePiero’s Lawsuit Against Penn State
11
HR Dive. Court Dismisses White Professor’s Claim That Penn State Abington Maintained Hostile Work Environment
12
CourtListener. De Piero v. Pennsylvania State University, Parties
13
Equal Protection Project. Equal Protection Project Files Amicus Brief Supporting Penn State Professor
14
Mountain States Legal Foundation. De Piero v. Pennsylvania State University
15
Fair for All. Penn State Case Page
16
Fair for All. Reply Brief, De Piero v. Pennsylvania State University
17
Equal Protection Project. EPP Amicus Brief, De Piero v. Pennsylvania State University
18
CourtListener. Oral Argument Audio, De Piero v. Pennsylvania State University