Justice Department ramps up pressure against ‘unlawful’ DEI

On 29 July, Pam Bondi, the United States attorney general, issued a memorandum intended to give form and substance to the executive orders banning diversity, equity and inclusion (DEI) signed by President Donald J Trump after he returned to power on 20 January.

Although the nine-page memorandum provides guidance to all recipients of federal funding – state and local governments and public and private employers – it appears overwhelmingly aimed at colleges and universities, with 23 of the 30 examples or scenarios provided focusing on college and university DEI or similar programmes.

The memorandum represents an attempt to ramp up efforts to “intimidate, threaten and exert control” over higher education institutions, forcing them to fall into line with the Trump administration’s ideology, a senior official at PEN America said.

The nine-page memorandum, “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (“Guidance”), begins by asserting that a “bedrock principle” of the United States “is that all Americans must be treated equally” before the law.

In a thinly veiled attack on Trump’s predecessor, President Joe Biden, it alleges that “in recent years, the federal government has turned a blind eye toward, or even encouraged, various discriminatory practices, seemingly because of their purportedly benign labels, objective, or intentions”.

As is the case with both the executive orders and in letters that have been sent to Harvard, Columbia, Johns Hopkins, and other universities announcing federal investigations of them, Bondi takes off her rhetorical gloves and states: “No longer. Going forward, the federal government will not stand by while recipients of federal funds engage in discrimination.”

Under whatever name – DEI, DEIA (Diversity, Equity, Inclusion and Access), or DEIB (Diversity, Equity, Inclusion and Belonging) – such programmes, the ‘Guidance’ asserts, violate Title VI of the Civil Rights Act of 1964 (CRA), which “prohibits discrimination based on race, colour, or national origin” in, among other entities, educational institutions and state agencies (which would include public colleges and universities).

Hiring and promotion practices informed by DEI, Bondi claims, violate Title VII of the CRA, which prohibits discrimination in these areas. Further, the Guidance states that DEI programmes that allow transgendered women to compete in sports violate Title IX of the Education Act of 1972.

“This guidance continues a pattern from the current administration of contorting civil rights law to dismantle diversity, equity, and inclusion efforts in a range of institutions,” Jonathan Friedman, Sy Syms managing director, US Free Expression Programs for PEN America, wrote in an e-mail to University World News.

“Those efforts vary widely, and the guidance itself leaves much undefined and unclear about what exactly is being prohibited and how it will be enforced.

“It’s undeniable that the examples lean toward colleges and universities and, coming amid other recent settlements with private universities, appear designed to continue to put pressure on them to fall into line with the administration’s ideological preferences.”

Friedman said the Trump administration is “clearly being emboldened to continue this effort at using the purse strings of the federal government to intimidate, threaten, and exert control over how a range of institutions operate”.

Examples of ‘unlawful’ practice

The three “Examples of unlawful practices” all pertain to post-secondary institutions. The first example states that a scholarship fund that is “exclusively for students of a specific racial group (for example, Black Excellence Scholarship) and excludes otherwise qualified applicants of other races” is illegal.

Among America’s more than 5,000 colleges and universities, there are thousands of scholarships that donors set up specifically for Blacks, Hispanics, and other under-represented minorities (as well as for women) in, for example, STEM. While state laws vary, in all cases, monies entrusted to an institution for a scholarship can be expended only for the purpose the scholarship (often a bequest) was established.

According to Friedman, this guidance “may in fact create contractual complexities with existing scholarships offered in institutions of higher education”.

Although the ‘Guidance’ is silent on America’s Historically Black Colleges and Universities (HBCUs), Hispanic Serving Institutions, Tribal colleges (most being located on Indian reservations), and women’s colleges (for example, Mount Holyoke in Massachusetts and Barnard, which is part of Columbia University), their scholarship programmes could be swept up in this vague regulation.

Depending on how this guidance is interpreted, wrote Friedman, this ban appears in principle to contradict other commitments the administration has made, for example, in a prior executive order to support HBCUs. Further, it could have a wide impact on various minority-serving institutions, including tribal colleges and women’s colleges.

The ‘Guidance’ also forbids “race-exclusive” internships, mentorship programmes, or leadership initiatives, many of which are funded by bequests provided for, for example, providing mentorships for underrepresented minorities in various fields such as computer science.

The second unlawful practice the ‘Guidance’ cites is “prioritis[ing] candidates from ‘under-represented’ groups for admission, hiring, or promotion, by passing qualified candidates who do not belong to those groups”.

This interpretation of the CRA would endanger, for example, George Mason University (Fairfax), Virginia’s largest public university, whose objective (as stated in its official plan) is that “faculty and staff demographics [...] mirror student demographics”.

Bondi’s interpretation of the CRA is at variance with that of a number of states, including California and New York, that have laws designed to increase the hiring of under-represented minorities in public institutions, including universities.

The third example of an unlawful practice concerns access to facilities. Universities may no longer designate “a ‘safe space’ or lounge exclusively for students of a specific racial or ethnic group.”

Later, Bondi returns to this point and indicates what the DoJ believes to be the psychological effect of such spaces: “A college receiving federal funds designates a ‘BIPOC-only study lounge,’ facially discourage[es] access by students of other races.”

Concerning this interpretation of civil rights law, Friedman explained that “campuses that have spaces intended for all – dorms, residential colleges, classrooms, cafeterias – must be kept open to a diversity of views and people of any backgrounds. It is unreasonable to impose constraints on public or communal areas of a campus as a way to exclude certain people or ideas”.

However, “at the same time, colleges and universities, as with any public institution, have to uphold and protect people’s rights to gather as they choose. People should always have the opportunity to voluntarily enter into or exit spaces, affinity groups, clubs, and the like,” he writes.

‘Designed to intimidate institutions’

Friedman characterises the guidance as “appear[ing] primarily to be designed to intimidate and chill how institutions operate”.

Several times the ‘Guidance’ grounds itself in the 2023 Supreme Court of the United States (SCOTUS) decision in Fair Admissions v. Harvard that declared affirmative action to be unconstitutional.

As did Secretary of Education Linda McMahon in her 14 February ‘Dear Colleague Letter’ that aimed to “clarify and reaffirm the non-discrimination obligations of schools”, the ‘Guidance’ imputes arguments to SCOTUS that are not present in Chief Justice John Roberts’ majority decision.

The most obvious example of this is when Bondi asserts that “‘Overcoming Obstacles’ Narratives or ‘Diversity Statements’” are “unlawful proxies” for race-based application information.

According to Friedman, this “guidance is overbroad and ill-defined. And it specifically goes far beyond what was articulated in the Fair Admissions case. That Supreme Court decision eliminated race-based affirmative action in the admissions process at Harvard University, implementing a merit-based admissions process”.

“However, ‘merit-based’ according to that court decision can include a students’ lived experiences or hardships that they may have had to overcome to succeed in their academic performance. This can be anything from financial hardship (regardless of race) to bullying. It does not always equate to a person’s race, religion, or gender [and] sexual identity.

“The current guidance is not consistent with that Court decision and seems to be trying to expand it in vague and broad ways, which are certain to have a chilling effect,” Friedman writes.

DEI not defined

Although DEI appears in the ‘Guidance’ 16 times, oddly for a government document of this sort, the DoJ never defines the phrase or its two cognates: DEIA and DEIB.

Further, in a departure from decades of jurisprudence and policy documents, Bondi’s DoJ uses the ethos of the CRA – which was passed into law in the wake of the March on Washington led by Dr Martin Luther King – against DEI and other efforts to combat structural racism in, for example, faculty hiring.

“The trend going back many years now has been for legislators and officials who want to enact a broad chilling effect in public institutions to use vague definitions, coupled with punitive threats, in the laws they have been introducing.

“The tactic is no different now from the Attorney General’s office, which is making it clear that it dislikes initiatives and programmes that have been operated under the terms ‘diversity, equity, and inclusion’ but does not have a coherent definition of what they in fact include.

“By keeping it somewhat vague, it is easier to have a wider chilling effect, because it makes it less clear how the guidance applies and incentivises individuals and institutions to comply in advance, motivated by an aversion to risk.”

Friedman says here, ‘DEI’ has become the latest bogeyman term, replacing what for a while was targeted as ‘CRT’ or critical race theory. “But in both cases, the vagueness makes it harder to be in compliance and appears a strong rationale for why it persists, from state laws to federal guidance,” writes Friedman.