Federal Government Issues New Guidance on DEI Enforcement

In the past two weeks, the federal government has issued additional guidance regarding implementation of President Trump’s executive orders regarding diversity, equity and inclusion (DEI). On February 5, 2025, the Office of Personnel Management (OPM) and the U.S. Attorney General (AG), issued guidance addressing DEI implications for federal agencies, private employers and educational institutions. On February 14, 2025, the Department of Education, Office for Civil Rights (OCR), released a Dear Colleague letter to state and local educational institutions. The guidance and important implications are analyzed below. 

Office of Personnel Management (OPM) and Attorney General (AG) Memoranda 

OPM Memorandum

On February 5, 2025, the federal government issued three memoranda concerning President Trump’s executive orders related to DEI. 

The first was issued by Charles Ezell, Acting Director of the U.S. Office of Personnel Management (OPM) to all federal departments and agencies. It directs them to “terminate all illegal DEIA initiatives”, including DEI offices, policies, programs and practices that unlawfully discriminate in any employment action or term of employment based on protected characteristics like race, color, religion, sex, and national origin, among others. According to Acting Director Ezell, “unlawful discrimination” includes “taking action motivated, in whole or in part, by protected characteristics.”

At the same time, Ezell’s memorandum provides clarity on certain permissible activities within the federal government, including “affinity group lunches,” “mentorship programs,” and other “social and cultural events.” The memorandum cautions that agencies should ensure that “attendance at such events is not restricted (explicitly or functionally) by any protected characteristics during the events.” For example, it would be unlawful to limit attendance at one of these events to only members of a certain group or discourage others from attending. It would also be unlawful, according to Ezell, to host an event in which participants were segregated into separate groups, such as “White” and “People of Color.” Similarly, a federal agency is not permitted to allow an affinity group for one racial or religious classification, but deny the formation of such a group for another classification. 

AG Memoranda

Also on February 5, 2024, U.S. Attorney General Pamela Bondi issued two memoranda implementing President Trump’s DEI-related executive orders. The first one focuses on the federal government. It directs all agencies to conduct internal audits for “race- or sex-based preferences, diversity hiring targets or preferential treatment based on DEI- or DEIA-related criteria,” with particular attention paid to: (1) training programs that include references to “unconscious bias”, “cultural sensitivity”, “inclusive leadership” and any criteria other than merit;  (2) policies and guidelines on hiring, promotion, and performance evaluation; and (3) vendor contracts and budget materials.

The second memo from Bondi has broader applicability. It states that the Department of Justice (DOJ) will “investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs and activities in the private sector and educational institutions that receive federal funds.” It also directs the Civil Rights Division and Office of Legal Policy to submit a report with recommendations for enforcing federal civil rights laws to “encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA.”

At the same time, Bondi’s second memorandum provides that neither it, nor the relevant executive orders, prohibit “educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.”

Implications

None of these memoranda carry the force of law. Rather, they articulate the federal government’s interpretation and position on potential enforcement of DEI-related executive orders and federal anti-discrimination laws. The memoranda also offer some practical insight into DEI efforts that the Trump administration would likely view as unlawful and those it would likely view as lawful. The focus on DEI and related programs here may be new. However, the underlying legal standard is not. Any program, (including DEI) that is not open to all employees or that uses racial preferences in decision-making will likely be viewed as illegal. These memoranda, however, suggest that not all DEI efforts need be abandoned. Affinity groups, mentorship programs, and cultural events celebrating the diversity and history of certain groups are not likely to be viewed as illegal by the federal government, so long as all are free to participate and attend.  

OCR Dear Colleague Letter

On February 14, 2025, Acting Assistant Secretary for Civil Rights Craig Trainor issued a Dear Colleague letter on behalf of the Department of Education’s Office for Civil Rights (OCR) regarding its interpretation of requirements under Title VI of the Civil Rights Act of 1964 and other federal civil rights law. The letter describes a number of practices and actions that OCR considers to be unlawful discrimination, including some programs meant to foster “diversity, equity, and inclusion” (DEI). 

Applying and expanding the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, the letter states that educational institutions pursuing objectives related to DEI must not use race—or proxies for race—“in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life.” Going further, the letter also states that when DEI programs “preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not,” they “deny students the ability to participate fully in the life of a school.” 

While the Dear Colleague letter also indicates that it does not have the force and effect of law, it makes clear that OCR will act quickly to assess educational institutions’ compliance with federal law “based on the understanding embodied in this letter.” Because the letter is non-binding guidance, OCR cannot cite it as an independent basis to find that a violation has occurred when it processes complaints or initiates a “directed investigation” of its own accord, and its interpretations will be subject to judicial review. However, educational institutions can expect that OCR investigations will reach conclusions consistent with this letter if considering whether some DEI programs and activities violate Title VI. 

Implications

Educational institutions should evaluate any current or contemplated programs, procedures, and communications related to DEI for compliance with legal requirements regarding racial classifications and preferences. For example, in some cases, institutions may need to clarify that all students or employees have an equal opportunity to access a program, event, or service. In other cases, institutions may need to ensure that trainings and other events do not utilize race-based “breakout groups” or rely on stereotypes. Educational institutions also should be mindful that OCR will review actions by consultants, foundations, and other third parties working with the institution for compliance with federal civil rights law.

Under the previous two federal administrations, OCR provided institutions the opportunity to respond to alleged violations and, if violations were found, to enter into a resolution agreement before OCR pursued an enforcement action that could impact the institution’s federal funding. Institutions that receive communications from OCR about any alleged violations or other compliance concerns should contact their legal counsel immediately about an appropriate response. 

For any questions about federal guidance and legal requirements related to DEI, please contact your Robbins Schwartz attorney.