On February 5, 2025, United States Attorney General Pam Bondi issued a memorandum titled "Ending Illegal DEI and DEIA Discrimination and Preferences." The memorandum advises that the Department of Justice's (DOJ) Civil Rights Division will be taking efforts to "investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds."
The announcement follows the issuance by President Donald Trump on January 21, 2025, of an Executive Order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which directed the Attorney General to take certain actions.
Summary of Memorandum
The February 5 memorandum sets forth relevant deadlines for certain actions by DOJ. Specifically, the memorandum provides that the Civil Rights Division and the Office of Legal Policy shall jointly submit to the Associate Attorney General a report containing recommendations for enforcement actions and other measures "to encourage the private sector to end illegal discrimination and preferences" by March 1, 2025. The report will identify "the most egregious and discriminatory DEI and DEIA practitioners in each sector of concern" and will include a plan with "specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences," including "proposals for criminal investigations." The memo does not, however, identify specific criminal statutes that might provide bases for criminal prosecution. In a footnote, the memorandum indicates some activities may stand, stating the "memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex."
The memorandum also previews the forthcoming issuance of guidance to educational institutions receiving federal funds. In particular, the memorandum states that DOJ "will work with the Department of Education to issue directions" and that DOJ's Civil Rights Division will pursue unspecified "actions" regarding "the measures and practices required" for compliance with federal law.
Takeaways
For Educational Institutions
Attorney General Bondi's February 5 memorandum makes clear the DOJ's intention to act swiftly and aggressively to implement President Trump's January 21 Executive Order. Educational agencies, colleges, and universities that receive federal funds should prepare for potential federal investigations of and challenges to their DEI policies and hiring and personnel practices.
Although the nature and scope of potential criminal liability remains unclear, the memorandum provides a timeline for the provision of additional details regarding the DOJ's potential targets and enforcement efforts.
For Government Contractors and Other Private Employers
Government contractors and other private employers should continue to carefully review their diversity programs, with the understanding that additional guidance from DOJ may also be forthcoming, in addition to the forecasted Department of Education guidance.
Worth Noting, for All
Both the Executive Order and Attorney General Bondi's February 5 memorandum refer to "illegal" DEI policies and programs, implicitly recognizing that certain diversity efforts by private employers and educational institutions do not violate federal anti-discrimination law.
While the memorandum raises the specter of criminal enforcement, the statutory bases for any such actions are not immediately apparent. Care should, of course, be taken to ensure that any certifications or representations to federal authorities regarding DEI policies and programs are accurate. The False Claims Act (FCA) imposes liability on anyone who "knowingly" submits a false claim for payment or approval to the government (which not all companies have occasion to do). And to succeed on an FCA claim, the government or qui tam whistleblower plaintiff must show not merely that the claim was false but also that the defendant knew the claim was false (whether through "actual knowledge" of falsity, "deliberate ignorance," or "reckless disregard" of the truth).
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