Last week, within hours of taking office, U.S. Attorney General Pam Bondi issued a memorandum titled “Ending Illegal DEI and DEIA Discrimination and Preferences.” The February 5 memo to the Department of Justice (DOJ) is the Attorney General’s first step to implement President Trump’s Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” ¹ Both documents take the view that DEI (diversity, equity, and inclusion) and DEIA (diversity, equity, inclusion, and accessibility) (collectively “DEIA”) policies in private- and public-sector organizations violate civil rights laws and “undermine our national unity.”

The Attorney General is preparing the DOJ’s Civil Rights Division to “investigate, eliminate, and penalize” DEIA policies. To that end, the memo directs the DOJ to issue an enforcement recommendation report by March 1, 2025. That report will address key areas of concern within the DOJ’s jurisdiction, identify DEIA practitioners it deems particularly egregious, introduce a deterrence plan, propose regulatory actions, and bring up to nine criminal and civil investigations to enforce this view of DEIA. The entities targeted by investigations will fit the criteria of Executive Order 14173 § 4(b)(iii): “publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.” In addition, the DOJ will consider pursuing involvement with ongoing litigation that implicates its view of DEIA policies violating civil rights laws.

The short memo also specifically warns educational entities receiving federal funds that the DOJ will rigorously enforce the Supreme Court’s guidance that “[e]liminating racial discrimination means eliminating all of it.” ² To do this, the Civil Rights Division will work with the Department of Education to identify appropriate regulatory and enforcement actions.

Attorney General Bondi’s memo and the underlying Executive Order do not clarify the specific conduct the Civil Rights Division will target other than the general labels of DEI and DEIA. The memo does explain, however, that “educational, cultural, or historical observances” are permissible if they “celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.” Examples of this may include Black History Month, International Holocaust Remembrance Day, and similar events.

Adding to the uncertainty and complexity, state attorneys general are preparing their own initiatives, some to fight against DEIA and others to support DEIA policies. Ten Republican attorneys general, led by Ken Paxton of Texas, recently sent a letter to major financial institutions to request information and potentially “avoid a lengthy enforcement action” that would target DEIA policies. And another group of attorneys general sent a letter to Costco Wholesale Corporation demanding answers regarding its DEIA policies.

There are numerous mechanisms for the DOJ—not to mention state enforcement agencies—to investigate and pursue noncompliance with the Trump administration’s view of DEIA. The Civil Rights Division may bring actions based on employment- and education-related statutes. A broad enforcement effort could include white-collar actions under the False Claims Act, which the DOJ or a whistleblower could initiate. Government contractors and federal grant recipients may face legal challenges under the False Claims Act if their DEI policies are deemed to be violating federal anti-discrimination laws or for falsely certifying compliance.

In this uncertain and potentially conflicting DEIA enforcement environment, it is more important than ever for companies and educational organizations to review their policies, determine their level of risk and risk tolerance, and if appropriate, take actions to mitigate that risk. Ice Miller is prepared to assist clients looking for ways to advance their goals and values with an eye to decreasing exposure and succeeding in any disputes down the road.

For more information, contact Tim Belevetz or Jennifer S. Jackman.

^{[1] 90 Fed. Reg. 8633 (Jan. 21, 2025).
[2] Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181, 206 (2023).} 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.