DOJ’s New DEI Guidance and Its Impacts on Colleges and Universities

DOJ Memo Details ‘Non-Binding Suggestions’ and ‘Best Practices’ That May Significantly Limit DEI Initiatives at Entities Receiving Federal Funds, Including Educational Institutions

Download

Authors: John R. Przypyszny , Jonathan D. Tarnow , Cindy Irani , Sarah L. Pheasant , Asher Friedman Young

At a Glance

On July 29, 2025, the Department of Justice (DOJ) released a memo from the Office of the Attorney General to all federal agencies, which provides guidance on the application of federal antidiscrimination laws to diversity, equity, and inclusion (DEI) programs and activities by recipients of federal funding. The guidance therefore directly impacts colleges, universities and other educational institutions.
The guidance expands upon the Department of Education’s currently court-enjoined “Dear Colleague Letter” of February 14, 2025, citing a nonexhaustive list of common practices such as institutional and geographic recruitment targeting, “first-generation” scholarship programs, “cultural competence” hiring requirements, and other policies as examples of “potentially unlawful” practices. The guidance also notes that federal funding recipients may be “liable for discrimination if they knowingly fund the unlawful practices of contractors, grantees, and other third parties,” heightening compliance risks for grantmaking organizations and other educational institutions.
Educational institutions should closely review the DOJ memo and assess their respective policies and practices accordingly.

In a memorandum dated July 29, 2025 (the DOJ Guidance), the Office of the Attorney General outlined guidance to all federal agencies regarding “the application of federal antidiscrimination laws to programs or initiatives that may involve discriminatory practices, including those labeled as Diversity, Equity, and Inclusion (‘DEI’) programs.” Although the DOJ Guidance is self-described as “non-binding suggestions to help entities comply with federal antidiscrimination laws” and “practical recommendations to minimize the risk of violations,” it represents a significant expansion in how DOJ might attempt to apply federal antidiscrimination laws to educational institutions, going forward.

The DOJ Guidance specifically discusses the legal obligations of educational institutions under Titles VI and VII of the Civil Rights Act, Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment, as well as relevant Supreme Court precedents such as Students for Fair Admissions, Inc. v. Harvard, 600 U.S. 181 (2023). It further asserts that certain DEI initiatives employed by educational institutions may constitute potential “discriminatory practices.”

The DOJ Guidance identified a broad scope of activities common among educational institutions that it believes may discriminate “based on protected characteristics like race, sex, color, national origin, or religion,” regardless of “the program’s labels, objectives, or intentions.” At a high level, it lists specific areas of what it terms “unlawful discriminatory policies and practices.” The DOJ Guidance also provides recommendations on best practices for educational institutions and other recipients of federal funding. It also provides examples of what it believes may be illegal DEI practices, including the following:

Category of “Unlawful Practice”	Examples of “Unlawful Practices”
*Granting Preferential Treatment Based on Protected Characteristics*	Race-based scholarships or programs Establishing scholarship funds exclusively for students of a specific racial group; race-exclusive opportunities such as internships, mentorship programs or leadership initiatives “that reserve spots for specific racial groups, regardless of intent to promote diversity” Preferential hiring or promotion practices Prioritizing candidates from “underrepresented groups” for admission, hiring or promotion; determining “preferred ‘underrepresented groups’” on the basis of a protected characteristic like race Access to facilities or resources based on race or ethnicity Designating a “safe space” or lounge exclusively for students of a specific racial or ethnic group
*Prohibited Use of Proxies for Protected Characteristics*	“Cultural competence” requirements Requiring candidates to demonstrate “cultural competence,” “lived experience,” or “cross-cultural skills” in ways that advantage candidates who have experiences the employer associates with certain racial groups Geographic or institutional targeting Implementing recruitment strategies targeting specific geographic areas, institutions, or organizations chosen primarily because of their racial or ethnic composition “rather than other legitimate factors” “Overcoming obstacles” narratives or “diversity statements” Requiring applicants to describe “‘obstacles they have overcome’ or submit a ‘diversity statement’ in a manner that advantages those who discuss experiences intrinsically tied to protected characteristics,” or otherwise using the narrative as a proxy for advantaging that protected characteristic in providing benefits
*Use of Protected Characteristics for Segregation or Candidate Selection*	Race-based training sessions DEI training programs requiring participants to separate into race-based groups Segregation in facilities or resources Designating a “BIPOC-only study lounge” even if access is technically open to all, study spaces, computer labs or other resource allocations based on protected characteristics Implicit segregation through program eligibility Hosting a DEI-focused workshop series requiring participants to identify with a specific racial or ethnic group, mandating sex-specific eligibility, specifying program eligibility “for underrepresented minorities only”
*Unlawful Use of Protected Characteristics in Candidate Selection*	Race-based “diverse slate” policies in hiring Requirements that all interview slates for faculty positions include a minimum number of candidates from specific racial groups or “underrepresented minority” candidates Any policy setting racial benchmarks or mandating demographic representation in candidate pools (e.g., requiring certain percentage of finalists to be from “diverse” backgrounds) Sex- or race-based selection for contracts Prioritizing awarding contracts to women- or minority-owned businesses over other qualified businesses without preferred group status Utilizing contract selection processes that use sex or race as a tiebreaker or primary criterion “without satisfying the appropriate level of judicial scrutiny” Sex- or race-based program participation Internship, scholarship, fellowship, or other programs that utilize protected characteristics in candidate selection or require a certain percentage of participants be “from ‘underrepresented racial groups’ or female students”
*Training Programs That Promote Discrimination or Hostile Environments*	Trainings promoting discrimination based on protected characteristics Requiring individuals to complete DEI trainings involving “statements stereotyping individuals based on protected characteristics,” including trainings that might “create a hostile environment or impose penalties for dissent in ways that result in discriminatory treatment”

DOJ’s “Recommendations on Best Practices” for Educational Institutions

The DOJ Guidance also lists specific “recommendations on best practices” for recipients of federal funding, which include most educational institutions. Key recommendations referenced in the DOJ Guidance include:

Opening all programs, activities and resources to all qualified individuals regardless of any protected characteristics, including by avoiding organizing groups or sessions that exclude participants based on protected traits. The DOJ Guidance also provides a caveat to this recommendation in the context of institutions’ transgender policies, specifying that “[s]ome sex separation is necessary where biological differences implicate privacy, safety, or athletic opportunity.”
Basing selection decisions on “specific, measurable skills and qualifications directly related to job performance or program participation” (e.g., avoiding “cultural competence” as a qualification and instead focusing on language proficiency or relevant educational credentials). DOJ also notes that “criteria like socioeconomic status, first-generation status, or geographic diversity must not be used if selected to prioritize individuals based on racial, sex-based, or other protected characteristics.”
Prohibiting demographic-driven criteria, including programs or policies “designed to achieve discriminatory outcomes,” noting that an intent to influence demographic representation can be discriminatory in and of itself. The DOJ Guidance specifically notes, for example, that a scholarship program must not target “underserved geographic areas” or “first-generation students” if the criteria are chosen to increase participation by specific racial or sex-based groups. The DOJ Guidance suggests instead that factors such as academic merit or financial hardship be applied instead.
Closely scrutinizing facially “neutral” criteria, such as programs targeting “low-income students” to determine whether they serve as proxies for race, sex or other protected characteristics.
Documenting “legitimate rationales” that are unrelated to race, sex or other protected characteristics for criteria in hiring, promotions or selecting contracts that might correlate with protected characteristics.
Avoiding training programs that exclude or separate participants based on protected characteristics, including trainings that require participants to “affirm specific ideological positions or ‘confess’ to personal biases or privileges based on a protected characteristic.”
Incorporating explicit nondiscrimination clauses in grant agreements, contracts or partnership agreements that require third parties (e.g., vendors, partner organizations, etc.) to comply with federal law and to not discriminate based on protected characteristics, and thereafter monitoring such compliance.
Establishing anti-retaliation procedures and safe reporting mechanisms (e.g., confidential, accessible reporting channels) for individuals who raise concerns, file complaints or refuse to participate in potentially unlawful programs. These policies should be included in employee handbooks, student codes of conduct and program guidelines.

Impact on Educational Institutions

The guidance follows the Department of Education’s February 14, 2025, “Dear Colleague Letter” (ED DCL) and corresponding “Frequently Asked Questions” (FAQs). As we previously covered, the ED DCL and FAQs represent a significant expansion in the application of the Supreme Court’s 2023 decision in Students for Fair Admissions to other aspects of an educational institution’s operations, whether related to admissions, employment, recruiting or student activities. However, that guidance was enjoined by a federal court in New Hampshire on April 24, 2025, blocking ED from enforcing or implementing the DCL or FAQs. The injunction applies to the National Education Association (the plaintiff organization in the case), its members and affiliated entities, and any institution that employs or contracts with National Education Association members.

Taken together with the ED DCL and DOJ’s “Civil Rights Fraud Initiative,” which outlines a policy to investigate and pursue claims under the False Claims Act against recipients of federal funds who “knowingly violat[e] civil rights laws” through their DEI programs, the DOJ Guidance signals a significantly expanded and coordinated multiagency federal effort to scrutinize race-conscious practices across both K-12 and higher education. Educational institutions should review their policies and practices for hiring and recruitment, scholarship and advancement, research activities, procurement, and other operational or programmatic areas that could be implicated by the DOJ Guidance.

Educational institutions should pay particular attention to the portions of the DOJ’s Guidance addressing the prohibited uses of proxies and protected characteristics (as defined by the DOJ), including common institutional practices such as first-generation scholarship programs, recruitment strategies targeting specific institutions or geographic areas, as well as the use of diversity statements. The DOJ Guidance greatly restricts the DEI training programs as well, both in terms of content and required attendance. Further, the DOJ Guidance demonstrates the federal government’s intent to continue closely scrutinizing institutional policies regarding transgender student athletes.

Conclusion

We continue to review and monitor the effects and implementation of the DOJ Guidance. It is not yet clear to what extent the DOJ’s expansive reading of current antidiscrimination laws will be enforceable. Nonetheless, considering the recent pattern of grant terminations across all federal agencies, educational institutions should continue to engage with legal counsel to evaluate their risk profiles in light of this new guidance.

For More Information

For further information, you may contact the authors.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.