Guidance on 'Unlawful Discrimination Memo' from DOJ on 7/29/25

The entirety of the guidance acts on the premise that white males and heterosexuals have been discriminated against.  Some considerations:

Consider what is listed as ‘Unlawful Preferential Treatment’

First, the definition of preferential treatment may is undergirded by the concept of ‘providing opportunities’ rather than outcomes.  For institutions that are more open access, this matters deeply.  Second, paradoxically, this definition requires ‘color blind’ approaches to higher education, which will, paradoxically, provide opportunities to certain groups over others, and the guidance will fold back on itself. 

Examples under ‘Unlawful Preferential Treatment’

Hiring or Promotion: Regarding safeguarding your institution via the claims about preferential hiring: You probably already have.  The claim being made by the correspondence is that candidates are chosen because of their being of an underrepresented group.  This is most likely not happening on your campus.

Access to Facilities or Resources Based on Race or Ethnicity: Do not exclude groups from resources or facilities, even if they are focused on a particular race or ethnicity.

Prohibited Proxies

The claim in the correspondence is that ‘cultural competence’, or ‘cross-cultural skills’ are euphemisms to evaluate candidates’ racial or ethnic backgrounds.  This is not the case for almost all of our institutions. These skills are generally used to ensure, for instance, that faculty/staff will be able to address the needs of all students, not to ‘guess’ at the identity of an applicant. Further, the claim that it is suggests, ironically, that white people cannot be culturally-competent, and that all racialized groups somehow are—a stereotype which is illegal based on their own memo.

Geographic of Institutional Targeting

The claim here is that we cannot target areas primarily because of their racial or ethnic composition solely “rather than legitimate factors.”  This is quite ambiguous and will likely go to court.

Overcoming obstacles or diversity statements

One cannot require these as a “proxy for advantaging that protected characteristic in providing benefits.” Most of us use such statements to see that individuals can serve all students, not for what the memo erroneously accuses us of. 

Segregation based on protected characteristics.

The rationale for why these would be illegal here is erroneous and so is most likely not practiced on our campuses.  The claim is that a “federally funded entity organizes programs, activities, or resources-such as training sessions-in a way that separates or restricts access based on race, sex, or other protected characteristics. Such practices generally violate federal law by creating unequal treatment or reinforcing stereotypes, regardless of the stated goal (e.g., promoting inclusion or addressing historical inequities).”  If this is not the case with your practices, you are most likely ok.

In the example of Segregation in Facilities or Resources, take care to note that in the example there is a lounge with the designation BIPOC Only.  This is different than BIPOC Lounge, All are Welcome, as many of us would have.

Race Based Training Sessions

In this section, again, there is reference to kinds of training that is most likely not happening on your campus.  Good DEI training does not claim that all white people are privileged, but that privilege is a result of racial systems; that it can be renounced; and that other identities also have privilege.

What Constitutes Unlawful Use of Protected Characteristics?

This section focuses on quota-based approaches to hiring, agreements, admissions, and more.  There are best practices in data disaggregation that does not establish quotas or violate these tenants, while still focusing on continuous improvement.

Demographic-Driven Criteria

This needs to be teased out by your campus and most likely through court. The example offered is for scholarships and admissions. “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.”  There are many nuances to this section of the memo, but institutions should tease out whether or not there is nuance in their using these practices solely to increase racial and gendered representation, or if there is rationale they can document otherwise.