Two Department of Justice memoranda offer a glimpse into plans to implement recent anti-DEI executive orders.
Executive Order 14173 (January 21, 2025) instructed the heads of all Federal agencies to work with the Attorney General of the United States to deliver a report to the President “containing recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI”. It specifically required the identification of “up to nine potential civil compliance investigations of 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.” The order also terminated affirmative action measures and DEI promotion in Federal contracting.
United States Attorney General Pam Bondi issued two memoranda on February 5, 2025, directing DOJ staff to implement that order. Each memorandum provides insight into how that implementation will occur.
- The Eliminating Internal Discriminatory Practices memorandum directs the termination of “all race- or sex-based preferences as a method of compliance with federal civil rights laws” in favor of forthcoming guidance “affirming that equal treatment under the law means avoiding identity-based considerations in employment, procurement, contracting, or other [DOJ] decisions.”
- The memo also directs DOJ staff to deliver a report to the Attorney General listing, among other things, the names of all federal contractors, vendors, suppliers, and grantees who have provided the DOJ with DEI training or DEI training materials since January 20, 2021, and the names of all grantees who received federal funding to provide or advance DEI, DEIA, or “environmental justice” programs, services, or activities since January 20, 2021.
- The Ending Illegal DEI and DEIA Discrimination and Preferences memorandum directs DOJ staff to compile the information necessary to provide the report required by Executive Order 14173. Among other things, it directs staff to identify (a) the most egregious and discriminatory DEI and DEIA practitioners in each sector of concern (including philanthropy); (b) a plan including specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences, including proposals for criminal investigations; and (c) additional potential litigation activities (including interventions in pending cases, statement of interest submissions, and amicus brief submissions), regulatory actions, and sub-regulatory guidance.
It is clear from the memoranda that the DOJ intends to take a broad approach to implementing Executive Order 14173. It seems reasonable to assume that other Federal agencies will follow suit.
Of note, both memoranda state that they do not 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.” Although this provides some reassurance to organizations that are continuing their observances, it comes in stark contrast to the actions taken by several Federal agencies to cancel their own Black History Month celebrations.
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This Alert does not constitute legal guidance in any manner. This continues to be a rapidly evolving environment and one that C3 Legal continues to monitor.