“No Longer”: DOJ Guidance to Federally Funded Entities on Unlawful Discrimination
The U.S. Department of Justice has issued guidance to every federal agency warning that programs using protected traits—however well-intentioned—risk violating federal law when they allocate opportunities or burdens based on race, sex, religion, color, or national origin. Framed as a corrective to recent trends, the memorandum from Attorney General Bondi clarifies that recipients of federal funds—including schools, state and local governments, health systems, and employers—must ensure their policies are neutral with respect to protected characteristics and withstand rigorous judicial scrutiny where any consideration of those characteristics is contemplated.
The memo catalogs the core statutes and constitutional principles at issue. Title VI bars discrimination based on race, color, or national origin in federally assisted programs; Title VII prohibits employment discrimination; Title IX prohibits sex-based discrimination in education; and the Equal Protection Clause constrains state actors. Echoing recent Supreme Court decisions, the document stresses that race-based classifications demand strict scrutiny and sex-based classifications require an “exceedingly persuasive” justification. It emphasizes that labels such as “DEI,” “equity,” or “belonging” do not insulate a program from legal review if the effect or design uses protected traits to advantage or disadvantage people.
Much of the guidance focuses on what the Department deems unlawful preferential treatment. Examples include race-exclusive scholarships, internships, or mentoring tracks; hiring or promotion rules that prioritize demographic categories; contract awards that elevate vendors based on the owner’s sex or race; and “diverse slate” or quota-like screening requirements that function as demographic thresholds. The memo also targets the indirect use of protected traits through proxies. Criteria such as “cultural competence,” “lived experience,” certain geographic targeting, or required “diversity statements” may be unlawful if selected or applied to replicate racial or sex-based preferences, even when framed in neutral terms.
The Department takes a notably strict line on segregation and sex-based boundaries. It cautions that separating trainings, lounges, or programs by race is generally unlawful. At the same time, it warns that failing to maintain sex-separated intimate spaces or permitting males to compete in female athletics may undermine privacy, safety, and equal opportunity for women and girls under Title IX and Title VII. The throughline is that programs must not exclude or burden people because of protected traits, and neutrality—not demographic engineering—governs compliance.
Training content is another focal point. Sessions that stereotype, demean, or compel ideological confessions tied to protected characteristics can create a hostile environment or penalize dissent, triggering liability. The memo underscores protection against retaliation for employees or participants who object to or refuse to participate in programs they reasonably believe are discriminatory.
Beyond direct compliance, recipients are told to scrutinize third-party partners and subrecipients. Federal dollars may not be used to finance discriminatory programs indirectly; agencies and grantees should embed explicit nondiscrimination clauses in agreements, monitor materials and outcomes, and terminate funding for noncompliance. To operationalize compliance, the document offers non-binding “best practices”: ensure open access to programs; anchor hiring and selection in measurable, job-related qualifications; avoid demographic goals and quotas; document legitimate, neutral rationales; test “neutral” criteria for proxy effects; keep trainings inclusive; implement clear anti-retaliation policies; and create confidential reporting channels. While styled as guidance rather than regulation, the memo’s message is unambiguous: entities relying on federal funds should promptly review and adjust programs, policies, and partnerships to align with nondiscrimination mandates, or face legal, financial, and reputational risk if they do not.
Disclaimer: This blog post is a good-faith summary for informational purposes only and does not constitute legal advice. Readers should consult the original memorandum and qualified counsel for guidance tailored to their specific facts and jurisdictions.