The U.S. Department of Justice (DOJ) on Tuesday issued a memorandum to all federal agencies that further delineates specific practices that the Trump administration considers violations of civil rights law, including diversity, equity and inclusion (DEI) programs. The memo generally follows previous executive orders and guidance documents in this area.
While the guidance applies to all recipients of federal funds, many of the examples of potentially illegal practices cited concern education. These include lounges and other spaces set aside for specific groups, race and gender-based scholarships, and university hiring and admissions policies. Overall, the DOJ memo broadens the scope of practices identified by the administration as potentially violating federal law.
As with the previous guidance in this area, such as the U.S. Education Department’s (ED) February 14 Dear Colleague Letter, a careful reading is warranted. In several instances, the memo seems to declare broadly that a certain practice is illegal, but a close reading somewhat narrows the scope. This is especially apparent in the section of the guidance that addresses use of “proxies” for protected characteristics, which is an expansion upon previous guidance. The memo notes that use of “proxies” must be intended to “advantage or disadvantage individuals based on protected characteristics” and goes on to list examples that are “potentially” unlawful, including cultural competence requirements in hiring, geographically targeted recruitment and diversity statements.
Many legal scholars noted after the executive orders and previous Trump administration guidance in this area that it is the courts that decide whether a given practice runs afoul of the Constitution and federal civil rights law, and that any practice that was legal before the guidance was issued is still legal. The same is true for this DOJ memo. Many of the practices listed in the memo have not been found by courts to be generally unlawful, but the legal landscape is ever-shifting.
For example, the state of Tennessee and Students for Fair Admissions, the group that brought the lawsuit resulting in the Supreme Court decision prohibiting race-based admissions to achieve student diversity, have sued ED, arguing that the Hispanic-Serving Institutions program is unconstitutionally discriminatory. Many other lawsuits arguing against some of the practices listed in the DOJ memo are also pending.
As with the previously issued guidance, colleges are advised to consult with their legal counsel and possibly other state officials to determine what, if any, actions to take in response to the DOJ memo.
