On February 5, 2025, U.S. Attorney General Pam Bondi issued fourteen memos outlining new policies for the U.S. Department of Justice ("DOJ"). Among them is a memorandum entitled "Ending Illegal DEI and DEIA Discrimination and Preferences" ("Memorandum") outlining DOJ's intention to effectuate President Trump's January 21 Executive Order, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." As we have explained, the Executive Order interprets diversity, equity, and inclusion ("DEI") and diversity, equity, inclusion, and accessibility ("DEIA") policies as violating civil rights laws and directs agencies to take enforcement action.
The Memorandum states that the DOJ's Civil Rights Division will "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 Memorandum further commits to providing a report to the Associate Attorney General, consistent with the Executive Order, detailing "the most egregious and discriminatory DEI and DEIA practitioners in each sector of concern" and proposals for criminal investigations and up to nine potential civil compliance investigations. It states it will provide this report by March 1, 2025.
The Memorandum contains very little detail regarding policies it views as "illegal," but there is one footnote that organizations should note. The footnote states that DOJ is focused on programs that "discriminate, exclude, or divide individuals based on race or sex" and is not intended to prohibit "educational, cultural, or historical observances . . . that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination."
The Memorandum also closes with a separate section directed toward educational agencies, colleges, and universities receiving federal funds, stating DOJ's intention to work with the Department of Education to "issue directions" and "pursue actions" regarding compliance with the Supreme Court's 2023 Students for Fair Admissions ("SFFA") decision. As we discussed in our blog post earlier this week, the heightened government scrutiny on higher education creates significant white collar enforcement risk. This new Memorandum further underscores the Trump administration's focus on DEI within higher education institutions as a focus for government enforcement efforts.
Given the complexity and potential legal implications of these executive orders and agency actions, businesses should seek legal guidance to navigate compliance and avoid potential legal challenges. We recommend that you review your current policies, programs, marketing, and communications in light of the ongoing government scrutiny. We are prepared and can provide advice on conducting DEI policy audits, revising employment practices, updating contractual agreements, and preparing for and responding to government investigations. If you have any questions or concerns about the Memorandum, executive orders or their implication for your organization, please contact us.
Originally published by 06 February 2025
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