The U.S. Department of Justice (DOJ) released guidance for federal agencies on Thursday on the administration’s interpretation of civil rights law in the context of diversity, equity, and inclusion initiatives at educational institutions. The guidance was addressed to federal agencies, as opposed to grantees, though it does instruct recipients of federal funding to review it to ensure compliance.
The guidance begins by offering an overview of antidiscrimination compliance, stating that in exchange for receiving federal funds, grantees are required to comply with federal antidiscrimination laws and requirements, including Title VI and VII of the Civil Rights Act, Title IX of the Education Amendments of 1972, and the Equal Protection Clause under the 14thAmendment of the U.S. Constitution. The guidance states that grantees’ failure to comply with those requirements may result in the loss of access to federal funds. It also provides a list of practices that may violate the antidiscrimination laws mentioned, including:
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Granting preferential treatment based on protected characteristics, such as race-based scholarships;
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Use of proxies for protected characteristics, such as “’overcoming obstacles’ narratives or ‘diversity statements’”;
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Segregation based on protected characteristics, such as trainings that require staff to separate into groups based on race; and
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Training programs that promote discrimination or hostile environments.
The guidance provides examples of the types of activities within the categories identified that may create a hostile environment and provides recommendations and best practices to avoid violations of antidiscrimination law.
The DOJ guidance is similar in content to a Dear Colleague letter released earlier this year by the U.S. Department of Education (ED) on Title VI compliance. A federal court later directed ED to halt implementation of that letter while multiple lawsuits proceed, but the administration has still taken action to reduce the use of federal funds for DEI initiatives, including reviewing and rewriting ED grant priorities. It is unclear if ED will issue new guidance to grantees in light of the DOJ memorandum, but grantees should familiarize themselves with the DOJ guidance as ED has been working closely with DOJ on civil rights investigations at educational institutions.
The DOJ memorandum is available here.
