Employment Law Update: What Employers and Educational Institutions Need to Know about the Attorney General’s February 5th Memo on Eradicating DEI Preferences and the U.S. DOE’s Valentine’s Day Letter to Educational Institutions
Date: February 20, 2025
By:
Lisa M. Brauner
- Key Provisions of the Memorandum and Threat of Criminal Prosecution
The memo focuses on two objectives:
- By March 1, 2025: the U.S. Justice Department’s Civil Rights Division and Office of Legal Policy must provide a joint report to the Associate Attorney General with written recommendations for enforcing federal civil rights laws and taking “other appropriate measures” to “encourage” private-sector employers (including nonprofit organizations) to end illegal discrimination and preferences, including policies relating DEI and DEIA.
The report must address “key sectors of concern,” identify the “most egregious and discriminatory DEI and DEIA practitioners in each sector of concern,” include proposals for “criminal investigations” and “up to nine potential civil compliance investigations of entities that meet the criteria” from President Trump’s Executive Order 14173,[1] and propose specific steps to deter the use of DEI/DEIA programs or principles that constitute illegal discrimination or preferences.
- Guidance for Higher Education Institutions Receiving Federal Funds: Citing the Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”), the AG’s memo stated that the DOJ will work with the Department of Education to issue directions, and the DOJ will pursue actions, regarding the measures and practices required to comply with the SFFA decision. The memo specifically instructed that educational agencies, colleges, and universities receiving federal funds may not discriminate against students based on race, color, or national origin. In SFFA, the Supreme Court held that the race-based admissions policies of Harvard College and the University of North Carolina violated the Equal Protection Clause of the 14th Amendment.
- What Is Lawful DEI according to Trump’s Attorney General?
A footnote in the AG’s memorandum clarifies that its directive “does not prohibit educational, cultural, or historical observances such as Black History Month, International Holocaust Remembrance Day, or similar events that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”
How the DOJ will pursue “illegal DEI and DEIA” when neither it nor the DOE has defined those terms remains to be seen. Federal anti-discrimination laws already prohibit employment actions being taken to favor a candidate or employee because of a legally protected category (i.e., race, sex, age). There is no clarification as to what aspects of DEI and DEIA programs are unlawful.
How the DOJ will pursue “illegal DEI and DEIA” when neither it nor the DOE has defined those terms remains to be seen. Federal anti-discrimination laws already prohibit employment actions being taken to favor a candidate or employee because of a legally protected category (i.e., race, sex, age). There is no clarification as to what aspects of DEI and DEIA programs are unlawful.
- Litigation
As per the memo, the DOJ may engage in additional litigation activities, such as interventions in pending cases, statement of interest submissions, and amicus brief submissions. Regulatory actions and sub-regulatory guidance may also be issued to clarify compliance requirements.
- Post-Script to the AG’s Memorandum: Higher Education Take Note!
On Friday, February 14, 2025, the U.S. Department of Education (“DOE”) issued a “Dear Colleague” letter to educational institutions receiving federal financial assistance from the DOE, with four main takeaways:
- Warns educational institutions receiving federal funding that failure to comply with federal civil rights laws may result in the loss of federal funding;
- Notifies them that it will take measures to assess legal compliance in accordance by February 28, 2025; and
- Provides examples of programs or practices of education it views as unlawful race discrimination; and
- Provides advice/warning to educational institutions on the next steps to take to ensure compliance with the DOE’s expectations.
The letter states that: “treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.”
The letter argues that the Supreme Court’s holding in SFFA applies more broadly than just prohibiting the use of racial preferences in college admissions. Specifically, it notes that: “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: if an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate nor segregate students based on race nor distribute benefits or burdens based on race.”
The letter provides a few examples of programs or practices by educational institutions that it views as unlawful discrimination under Title VI of the Civil Rights Act of 1964 which prohibits covered entities from excluding participation in or denying benefits of any program or activity receiving Federal financial assistance, on account of one’s race, color or national origin discrimination:
The letter argues that the Supreme Court’s holding in SFFA applies more broadly than just prohibiting the use of racial preferences in college admissions. Specifically, it notes that: “Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: if an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate nor segregate students based on race nor distribute benefits or burdens based on race.”
The letter provides a few examples of programs or practices by educational institutions that it views as unlawful discrimination under Title VI of the Civil Rights Act of 1964 which prohibits covered entities from excluding participation in or denying benefits of any program or activity receiving Federal financial assistance, on account of one’s race, color or national origin discrimination:
- Eliminating standardized testing to achieve a desired racial balance or to increase racial diversity.
- Using students’ personal essays, writing samples, participation in extracurriculars, or other cues as a way to determine or predict a student’s race and favoring or disfavoring such students.
- Using DEI programs that prefer certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. The letter states that “[s]uch programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.”
The DOE further advises such educational institutions—in somewhat enigmatic and vague terms—to:
“(1) ensure that their policies and actions comply with existing civil rights law;
(2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
(3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions to circumvent prohibited uses of race.”
The letter also invites recipients to report on other covered entities who have unlawfully discriminated by providing a link in the letter to an online complaint form.
Conclusion
These recent government communications confirm a significant shift towards the enforcement of federal civil rights laws concerning DEI and DEIA programs. Much remains uncertain about how the federal government plans to enforce its edicts and as a threshold matter, how the federal government defines or interprets the terms “DEI” and “DEIA.” Further, there is pending litigation challenging the President’s Executive Order 14173, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” In any event, employers and educational institutions would be well-advised to review and self-audit their websites and DEI programs and initiatives (together with their legal counsel to preserve legal privileges) to ensure they comply with existing anti-discrimination laws.
Please reach out to Whiteford’s Labor and Employment Law Team for guidance on compliance. We will continue to monitor and report on developments.
[1] President Trump’s EO 14173 entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633 (January 21, 2025), revokes an Equal Employment Opportunity executive order in place since 1965; requires federal grant recipients and contractors to certify that they do not operate DEI programs that violate anti-discrimination laws; and requires each executive agency to identify up to nine corporations or nonprofit entities or associations to target with civil investigations to deter DEI programs. For more information about the EO and the sectors targeted, see https://www.whitefordlaw.com/news-events/employment-law-update-trump-executive-orders-and-dei (regarding the targeted entities).
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.