The Memo

From Inside Higher Ed: More than three months after a federal court struck down an Education Department directive that barred any practices that consider race at colleges across the country, the Department of Justice declared Wednesday that diversity, equity and inclusion practices are unlawful and “discriminatory.” But the agency’s memo goes even further than ED’s guidance, suggesting that programs that rely on what they describe as stand-ins for race, like recruitment efforts that focus on majority-minority geographic areas, could violate federal civil rights laws. The directive applies to any organization that receives federal funds, and DOJ officials warned that engaging in potentially unlawful practices could lead to a loss in grant funding.

Other examples of “potentially unlawful proxies” include requirements that job applicants “demonstrate ‘cultural competence,’ ‘lived experience,’ or ‘cross-cultural skills’” or narratives about how the applicant has overcome obstacles, Attorney General Pamela Bondi wrote.

...Many of the practices declared unlawful in the nine-page memo echo those referenced in the Education Department’s February Dear Colleague letter, such as race-based scholarships. But it also explicitly states that “BIPOC-only study lounges” and similar facilities are unlawful. The Education Department’s guidance mentioned race-based facilities generally but not specifically study lounges...

The only truly safe ways to admit students right now are to admit everyone or only use standardized test scores,” Robert Kelchen, a professor in the University of Tennessee at Knoxville’s Department of Educational Leadership and Policy Studies, wrote in an email to Inside Higher Ed... 

Full story at https://www.insidehighered.com/news/government/2025/07/30/doj-declares-slew-dei-practices-unlawful-memo.

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The full memo is at https://www.justice.gov/ag/media/1409486/dl. Executive summary below: 

EXECUTIVE SUMMARY

This guidance emphasizes the significant legal risks of initiatives that involve discrimination based on protected characteristics and provides non-binding best practices to help  entities avoid the risk of violations. Key points include:

• Statutory nondiscrimination requirements: Federal law prohibits discrimination based on protected characteristics like race, sex, color, national origin, or religion.
• Legal pitfalls of DEI Programs: The use of terms such as *DEI," "Equity," or other euphemistic terms does not excuse unlawful discrimination or absolve parties from scrutiny  regarding potential violations.
• Prohibition on Protected Characteristics as Criteria: Using race, sex, or other protected characteristics for employment, program participation, resource allocation, or other similar activities, opportunities, or benefits, is unlawful, except in rare cases where such discrimination satisfies the relevant level of judicial scrutiny.
• Importance of Sex-separated Intimate Spaces and Athletic Competitions: Compelling employees to share intimate spaces with the opposite sex or allowing men to compete in women's athletic competitions would typically be unlawful.
• Unlawful Proxy Discrimination: Facially neutral criteria (e.g., "cultural competence,"  "lived experience," geographic targeting) that function as proxies for protected characteristics violate federal law if designed or applied with the intention of advantaging  or disadvantaging individuals based on protected characteristics.
• Scrutiny of Third-Party Funding: Recipients of federal ñrnds should ensure federal funds do not support third-party programs that discriminate.
• Protection Against Retaliation: Individuals who object to or refuse to participate in discriminatory programs, trainings, or policies are protected from adverse actions like termination or exclusion based on that individual's opposition to those practices.