More than three months after a federal court struck down an Education Department directive that barred any race-based practices at colleges across the country, the Department of Justice declared Wednesday that diversity, equity and inclusion is unlawful and “discriminatory.” 

But the agency’s memo goes even further than ED’s guidance, suggesting programs that rely on what they describe as stand-ins for race, like recruitment efforts that focus on majority-minority geographic areas, could violate federal civil rights laws. The directive applies to any organization that receives federal funds, and DOJ officials warned that engaging in potentially unlawful practices could lead to a loss in grant funding.

Other examples of “potentially unlawful proxies” include requirements that job applicants “demonstrate ‘cultural competence,’ ‘lived experience,’ or ‘cross-cultural skills’” or narratives about how the applicant has overcome obstacles, Attorney General Pam Bondi wrote. 

This interpretation of federal law could present new challenges for colleges that have relied on tactics like place-based recruitment to create diverse student bodies since the Supreme Court banned affirmative action in 2023. For instance, some colleges have guaranteed admission to students who graduate in the top 10 percent of their high schools.

“This highlights that every practice of colleges is under scrutiny, even ones that have been viewed as politically safe for years (such as top ten percent plans or even TRIO programs). The only truly safe ways to admit students right now are to admit everyone or only use standardized test scores,” Robert Kelchen, a professor in the University of Tennessee, Knoxville’s Department of Educational Leadership and Policy Studies, wrote in an email to Inside Higher Ed. “Being an enrollment management leader has always been tough, but now it’s even more challenging to meet revenue targets and satisfy stakeholders who have politically incompatible goals.”

Many of the practices declared unlawful in the nine-page memo echo those referenced in the Education Department’s February Dear Colleague Letter, such as race-based scholarships. But it also explicitly states that “BIPOC-only study lounges” and similar facilities are unlawful. The Education Department’s guidance mentioned race-based facilities generally but not specifically study lounges. 

DEI advocates have long argued that these centers or lounges are open to all students. Some have persisted even after state DEI bans, but multiple colleges have closed centers that catered to specific student groups in recent months. Bondi argued that such spaces violate Title VI of the Civil Rights Act of 1964, which bars discrimination based on race and national origin.

“Even if access is technically open to all, the identity-based focus creates a perception of segregation and may foster a hostile environment. This extends to any resource allocation—such as study spaces, computer labs, or event venues—that segregates access based on protected characteristics, even if intended to create ‘safe spaces,’” the order reads.

Beyond race-based practices, the letter also addresses transgender student athletes, building on the Trump administration’s previous actions that advocates say deny the existence of trans individuals and roll back their rights. The memo states that it would “typically be unlawful” for someone assigned male at birth to compete on women’s sports teams or for an institution to “compel” individuals to share an intimate space, like a locker room, with the opposite sex.

Eddy Conroy from the left-leaning think tank New America noted in a Bluesky post that “these are ‘non binding suggestions.’” 

“These are scare tactics, they are trying to get pre-emptive compliance; and given how higher ed institutions have been folding at every turn, we will see more of this because it’s working,” he wrote.