Attorney General Bondi issues memorandum regarding “unlawful discrimination,” with particular focus on higher education institutions

This advisory describes key aspects of the Memorandum and highlights the ways in which the Memorandum focuses on higher education institutions. The Memorandum targets all federal funds recipients, however. As the U.S. Department of Justice’s (“DOJ”) first comprehensive statement regarding its current interpretation of what the federal antidiscrimination laws require, the Memorandum warrants careful consideration as federal funds recipients consider risk mitigation, including in relation to DOJ’s recent pronouncements regarding enforcement of the federal antidiscrimination laws through the False Claims Act.¹

Use of facially neutral criteria

A particularly notable aspect of the Memorandum is its discussion regarding facially neutral criteria.

Whether and under what circumstances a federal funds recipient may use facially neutral criteria is a developing area of the law that the U.S. Supreme Court has yet to address squarely in the wake of its decision in Students for Fair Admissions, Inc. v. Harvard (“SFFA”). Although the SFFA Court warned that “‘what cannot be done directly cannot be done indirectly[,]’” it did not expound in any detail on pursuit of diversity through race-neutral means. The Biden-era U.S. Department of Education Office for Civil Rights (“OCR”) and DOJ issued guidance suggesting that it was permissible for institutions to seek a diverse student body and that SFFA did not “prohibit admissions models and strategies that do not consider an individual’s race, such as those that offer admission to students based on attendance at certain secondary or post-secondary institutions or based on other race-neutral criteria.”²

The Memorandum takes a different tack. It asserts that facially neutral criteria violate federal nondiscrimination laws if designed or applied with the intent to advantage or disadvantage individuals based on protected characteristics or to serve as proxies for protected characteristics. Key statements to that effect are:

• “Facially neutral criteria (e.g., ‘cultural competence,’ ‘lived experience,’ geographic targeting) that function as proxies for protected characteristics violate federal law if designed or applied with the intention of advantaging or disadvantaging individuals based on protected characteristics.” (emphasis added)
• “Unlawful proxies occur when a federal funded entity intentionally uses ostensibly neutral criteria that function as substitutes for explicit considerations of race, sex, or other protected characteristics. While these criteria may appear facially neutral, they become legally problematic under any of the following circumstances:
  • They are selected because they correlate with, replicate, or are used as substitute for protected characteristics.
  • They are implemented with the intent to advantage or disadvantage individuals based on protected characteristics.”

The Memorandum underscores this interpretation with examples of “potentially unlawful proxies” that seem to have higher education institutions in mind, including with respect to admissions and faculty hiring:

• A federal funded university requires job applicants to demonstrate “cultural competence,” “lived experience,” or “cross-cultural skills” in ways that effectively evaluate candidates’ racial or ethnic backgrounds “rather than objective qualifications.”
• A federally funded organization implements recruitment strategies that target specific geographic areas, institutions, or organizations chosen primarily because of their racial or ethnic composition “rather than other legitimate factors.”
• A federal funded program requires 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, using the narrative as a proxy for advantaging that protected characteristic in providing benefits.”

Many of the “non-binding” “best practices” set forth in the Memorandum address the above position regarding facially neutral criteria and seem to have been crafted with higher education in mind:

• “Base selection decisions on specific, measurable skills and qualifications directly related to job performance or program participation. . . . 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 status.”
• “Discontinue any program or policy designed to achieve discriminatory outcomes, even those using facially neutral means. Intent to influence demographic representation risks violating federal law. For example, 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. Instead, use universally applicable criteria, such as academic merit or financial hardship, applied without regard to protected characteristics or demographic goals.”
• “If using criteria in hiring, promotions, or selecting contracts that might correlate with protected characteristics, document clear, legitimate rationales unrelated to race, sex, or other protected characteristics. Ensure these rationales are consistently applied and are demonstrably related to legitimate, nondiscriminatory institutional objectives.”
• “Before implementing facially neutral criteria, rigorously evaluate and document whether they are proxies for race, sex, or other protected characteristics. For instance, a program targeting ‘low-income students’ must be applied uniformly without targeting areas or populations to achieve racial or sex-based outcomes.”

The U.S. Department of Education took a similar position regarding facially neutral criteria in its currently court-enjoined February 14, 2025, Dear Colleague Letter regarding discrimination on the basis of race, color, or national origin.

Focus on higher education in examples of potentially unlawful practices

In addition to the topic of “prohibited use of proxies for protected characteristics,” the Memorandum also addresses the following topics:

• Granting preferential treatment based on protected characteristics
• Segregation based on protected characteristics
• Unlawful use of protected characteristics
• Training programs that promote discrimination or create a hostile environment

For each topic, the Memorandum sets forth a position on what is unlawful with respect to that topic and provides examples of unlawful practices related to that topic. Numerous examples of unlawful practices are set in the context of universities and colleges. For example, the Memorandum characterizes the following practices as unlawful:

• Race-based scholarships or programs: “A university’s DEI program establishes a scholarship fund exclusively for students of a specific racial group[.] . . . This extends to any 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: “A federally funded entity’s DEI policy prioritizes candidates from ‘underrepresented groups’ for admission, hiring, or promotion.”
• Access to facilities or resources based on race or ethnicity: “A university’s DEI initiative designates a ‘safe space’ or lounge exclusively for students of a specific racial or ethnic group.”
• Race-based training sessions: “A federal funded university hosts a DEI training program that requires participants to separate into race-based groups (e.g., ‘Black Faculty Caucus’ or ‘White Ally Group’) for discussions, prohibiting individuals of other races from participating in specific sessions.”
• Segregation in facilities or resources: “A college receiving federal funds designates a ‘BIPOC-only study lounge,’ facially discouraging access by students of other races. Even if access is technically open to all, the identity-based focus creates a perception of segregation and may foster a hostile environment.”
• Race-based “diverse slate” policies in hiring: “A federally funded research institute adopts a policy requiring that all interview slates for faculty positions include a minimum number of candidates from specific racial groups.”
• Race- or sex-based program participation: A federally funded university’s internship program requires that 50% of selected participants be from ‘underrepresented racial groups’ or female students . . . . This extends to any program—such as scholarships, fellowships, or leadership initiatives . . .”
• Trainings that promote discrimination based on protected status: “A federally funded school district requires teachers to complete a DEI training that includes statements stereotyping individuals based on protected characteristics . . .”

Although many of the Memorandum’s examples of purportedly unlawful practices are set in the higher education context, the Memorandum instructs all entities that receive federal financial assistance to review carefully the guidance to ensure all programs comply with federal antidiscrimination laws. Organizations will want to examine carefully those examples of unlawful practices as they also provide insights into potentially defensible practices, and the “recommendations on best practices” provide suggestions for risk mitigation strategies.

Sex-separated intimate spaces and athletic competitions

The Memorandum asserts that compelling persons to share intimate spaces with the opposite sex and allowing men to compete in women’s athletic competitions would “typically” be unlawful. The Memorandum takes the position that federally funded institutions that allow males, including those who self-identify as women, to access single-sex spaces designed for females—such as bathrooms, showers, locker rooms, or dormitories—undermine the privacy, safety, and equal opportunity of women and girls. The Memorandum also takes the position that permitting males to compete in women’s athletic event “almost invariably denies women equal opportunity by eroding competitive fairness.” The Memorandum seeks to tie its position to Title IX by explaining that these sorts of practices “can violate Title IX by denying women access to the full scope of sex-based protections in education.” According to the Memorandum: “To ensure compliance with federal law and to safeguard the rights of women and girls, organizations should affirm sex-based boundaries rooted in biological differences.”

Next steps

As we have addressed in other advisories, the DOJ has launched numerous initiatives focused on the False Claims Act (“FCA”) and compliance with federal civil rights laws.³ It is clear that the government intends to devote resources to investigating and potentially pursuing FCA claims borne out of DEI-related initiatives and other conduct that it believes runs afoul of civil rights laws, whether instigated by private citizens or government personnel.

The Memorandum serves to warn federal funds recipients regarding the sorts of policies and practices that the federal government will view as worthy of scrutiny and/or as violative of federal antidiscrimination laws. That said, the Memorandum does not have the force of law and is instead DOJ’s interpretation of the law. Institutions should review the Memorandum closely and consult with experienced counsel in evaluating their policies and practices.

For assistance navigating this rapidly-evolving landscape, please reach out to the authors identified below or any Hogan Lovells lawyer with whom you work.

Authored by Joel Buckman, Stephanie Gold, George Ingham, Michelle Roberts Gonzales, and Madelyn Wessel.