Colleges have for months been trying to discern what kinds of diversity, equity, and inclusion efforts could be seen as discriminatory by the Trump administration. One university even hired an outside firm to try to read the tea leaves.
More clues emerged on Wednesday, when the Department of Justice spelled out a “non-exhaustive list of unlawful practices that could result in revocation of grant funding,” including certain kinds of preferential treatment, “unlawful segregation,” and training programs.
Though the memo, as is stated several times throughout the nine-page document, is nonbinding, it warns organizations receiving federal money — including institutions of higher education — that abiding by best practices can “mitigate the legal, financial, and reputational risks associated with unlawful DEI practices.”
Here are some of the campus activities described in the DOJ’s letter as potentially discriminatory and illegal:
- “Facilities or resources” designated based on race or ethnicity. If a college has a “BIPOC-only study lounge,” the memo says, that could be “facially discouraging access” even if it’s open to all. “The identity-based focus creates a perception of segregation,” the memo states. This interpretation also applies to “event venues,” but not to single-sex restrooms or locker rooms.
- Hiring policies that explicitly or implicitly suggest identity preferences. An institution, the memo said, could not require that faculty-job finalist pools include “at least two ‘underrepresented minority’ candidates.” The memo also deemed problematic “diversity-focused evaluations” and “diversity decision-making panels.”
- Groups “that exclude participants based on protected traits.” The memo seemed to object to certain kinds of campus affinity groups, such as a “Black Faculty Caucus” or a “White Ally Group.” A “Faculty Academic Support Network” open to anyone interested in student success would be allowed, the document said.
- Training sessions that discuss “toxic masculinity.” Such programming would qualify as “stereotyping individuals based on protected characteristics,” the memo said. The document also warned colleges against imposing “penalties for dissent,” such as refusing to complete a training.
- Programs whose selection criteria aim to increase diversity. A university internship or fellowship could not mandate that 50 percent of students come from “underrepresented racial groups,” the memo says.
- Criteria like “cultural competence” or “first generation status,” depending on the context. The memo warns against using such characteristics as a proxy for race or identity in hiring, admissions, or any competitive selection process. Colleges also shouldn’t ask anyone to submit a diversity statement or to describe “obstacles they have overcome.”
- “Geographic or institutional targeting.” A scholarship program could not aim its recruitment efforts at “underserved geographic areas” if the goal is to increase participation by students from certain racial groups, the memo states. Recruiting based on “financial hardship” is acceptable, it says.
Some legal experts said they believed the new guidance was designed to force colleges into preemptive compliance. “It really is transparently designed to intimidate schools and others into abandoning lawful practices that support diversity, equity, and inclusion,” said Shaheena Simons, senior adviser for strategy and programs for the Lawyers’ Committee for Civil Rights Under Law, an advocacy group.
In the aftermath of previous executive orders and guidance documents from the Trump administration, colleges have closed down or changed names of offices, canceled diversity-related events, and scrubbed DEI language from websites.
Figuring out what kinds of DEI efforts the Trump administration considers to be objectionable is a high-stakes problem: An investigation into diversity programs at the University of Virginia resulted in President James E. Ryan’s resignation, and the government has also been scrutinizing Gregory Washington, the president of George Mason University.
Simons, who worked at the Department of Justice as the chief of its educational-opportunities section, said the memo also doesn’t “change the law.” “They go on to say that a host of practices are against the law, and they do that with absolutely no citation or support,” she added.
The DOJ memo included some caveats connected to the Trump administration’s agenda — saying that segregation in facilities is unlawful, except when it comes to “sex-separated athletic competitions and intimate spaces.” Transgender athletes have been a fixture of Trump’s higher-education policies: The administration has declared that allowing transgender women to participate in competitions against cisgender women denies the latter group equal opportunity. (The University of Pennsylvania made a deal with the federal government in early July over Lia Thomas, a transgender woman and former swimmer for the university.)
The new memo builds on guidance documents released by the Department of Education in February, telling universities that having any race-conscious policies could lead to the loss of federal funding. But unlike those notices — which were temporarily halted by federal judges in April — the DOJ’s guidance is more specific.
“What the Department of Justice seems to be doing is trying to take an inroad around those court decisions with the goal of chilling schools, state and local governments, and other institutions that receive federal funding from engaging in these activities,” said Amalea Smirniotopoulos, senior policy counsel and co-manager of the NAACP Legal Defense and Educational Fund’s Equal Protection Initiative.
Smirniotopoulos said she worries colleges will roll back programs that are legal, fearing retribution and the specificity of the memo. “This idea that any time you have an equitable outcome in mind, that regardless of how you achieve that outcome, that program is questionable is a really dangerous idea,” she added.
