Diversity, Equity and Inclusion Programs at Risk under New Guidance from Department of Justice
On July 29, 2025, the Department of Justice (the DOJ) released formal guidance explaining that diversity, equity and inclusion (DEI) initiatives may violate federal civil rights law, putting federally funded entities at risk of fund revocation.
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The guidance comes in response to Attorney General Pamela Bondi’s February 2025 memo calling on the DOJ to scrutinize and eliminate unlawful DEI practices.
The memo’s interpretation of federal law may create new challenges for colleges that rely on certain recruitment tactics to ensure diverse student bodies. Examples of the memo’s “potentially unlawful proxies” include: (1) requirements that applicants “demonstrate ‘cultural competence’,” (2) recruitment strategies targeting specific geographic areas chosen primarily for their racial or ethnic composition, and (3) requirements that applicants submit “diversity statements” or describe “obstacles they have overcome.” The ban on diversity statements may provide for different interpretations of the Supreme Court of the United States’ decision in Students for Fair Admissions v. Harvard University, which overturned affirmative action. The guidance provides that programs that use these statements “in a manner that advantages those who discuss experiences intrinsically tied to protected characteristics” as potentially unlawful. Moreover, the memo specifically calls out “BIPOC-only study lounges” as unlawful, stating that “[e]ven if access is technically open to all, the identity-based focus creates a perception of segregation and may foster a hostile environment.”
In addition to discussing race-based practices, the memo also addresses transgender student athletes, specifically, that it would be “unlawful” for someone assigned male at birth to compete on a women’s sports team or for an institution to “compel” individuals to share an intimate space, such as a locker room, with someone of the opposite sex. The DOJ claims that such a policy will prevent the creation of a hostile environment, and is aimed at protecting athletes’ privacy, safety and professional standing.
Notably, the memo merely provides “recommended best practices” and “non-binding suggestions” to help entities avoid legal pitfalls and ensure equal opportunities, but it reflects how the DOJ interprets and intends to apply anti-discrimination statutes moving forward. Accordingly, entities that receive federal funding should review their programs, policies and partnerships to ensure they are in compliance with federal law and anti-discriminatory practices.
For further guidance, please contact Bill Matthews or Stephanie Wolbransky.
Co-author Bill Matthews is co-chair of the Corporate & Securities Department. Co-author Stephanie Wolbransky is an associate in the Litigation Department. Both are members of the firm’s education practice group.