DOJ Clarifies “Unlawful DEI”

With a goal of clarifying what constitutes unlawful diversity, equity and inclusion (DEI) programs, the Department of Justice (DOJ) issued a new Guidance Memo to all federal agencies.

In “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination,” Attorney General Pamela Bondi emphasized the “significant legal risks of initiatives that involve discrimination based on protected characteristics,” and provided four categories of DEI deemed by the DOJ to be unlawful.

Granting preferential treatment based on protected characteristics involves providing opportunities, benefits or advantages to individuals or groups based on protected characteristics in a way that disadvantages other qualified persons, the AG said.

Examples include race-based scholarships or programs (such as a “Black Student Excellence Scholarship” or race-exclusive opportunities such as internships, mentorship programs or leadership initiatives that reserve spots for specific racial groups), preferential hiring or promotion practices and access to facilities or resources based on race or ethnicity.

The second category in the memorandum, prohibited use of proxies for prohibited characteristics, occurs when a federally funded entity intentionally uses ostensibly neutral criteria that function as substitutes for explicit consideration of race, sex or other protected characteristics.

Potentially unlawful proxies can be found in “cultural competence” requirements—where job applicants are asked to demonstrate “lived experience” or “cross-cultural skills” in ways that effectively evaluate their racial or ethnic backgrounds rather than objective qualifications—as well as geographic or institutional targeting and “overcoming obstacles” narratives and “diversity statements.”

Segregation based on protected characteristics can be found when a federally funded entity organizes programs, activities or resources (such as training sessions) in a way that separates or restricts access based on race, sex or other protected characteristics, Bondi wrote.

Such practices create unequal treatment or reinforce stereotypes, although exceptions exist for cases where federal law expressly permits race-based remedies for specific, documented acts of past discrimination by the institution itself.

Race-based training sessions (such as a “White Ally Group” or “Black Faculty Caucus”) that prohibit individuals from other races from participating, segregation in facilities or resources—for instance, a “BIPOC-only study lounge”—and implicit segregation through program eligibility are all examples of such unlawful practices, according to the memo.

Finally, training programs that promote discrimination or hostile environments are a potential form of unlawful DEI. Unlawful DEI training programs are those that, through their content, structure or implementation, stereotype, exclude or disadvantage individuals based on protected characteristics or create a hostile environment, the AG said.

Examples of a problematic training include statements stereotyping individuals based on protected characteristics, such as “all white people are inherently privileged” or “toxic masculinity.”

The memo also provided recommendations for best practices.

Bondi advised entities to ensure inclusive access, focus on skills and qualifications, prohibit demographic-driven criteria, document legitimate rationales, scrutinize neutral criteria for proxy effects, eliminate diversity quotas, avoid exclusionary training programs, include nondiscrimination clauses in contracts to third parties (with compliance monitoring) and establish clear anti-retaliation procedures and create safe reporting mechanisms.

“By prioritizing nondiscrimination, entities can mitigate the legal, financial, and reputational risks associated with unlawful DEI practices and fulfill their civil rights obligations,” the memo concluded.

To read the DOJ’s Guidance Memo, click .

Why it matters: The DOJ’s memo continues a fight against DEI under the Trump Administration, with Executive Orders issued during the first days of the term and previous technical assistance documents from the DOJ and the Equal Employment Opportunity Commission ().