At the beginning of the second Trump administration, the President and Attorney General Pam Bondi indicated they would use the levers of government to end DEI (diversity, equity, and inclusion) policies and programs.1 The administration has taken the position that such policies in public and private institutions violate civil rights laws. As a result, the Department of Justice (DOJ) is coordinating an effort across the federal government to combat DEI through regulation, enforcement actions, and False Claims Act cases brought by either the government or whistleblowers. While Attorney General Bondi has signaled that large corporations, institutions, and universities will be the initial focus of these efforts, guidance documents emphasize the need to eliminate all DEI efforts across the board.2
Making good on these promises, the DOJ has rolled out its new Civil Rights Fraud Initiative (“the Initiative”), which purports to combat DEI policies (and anti-Semitism) in institutions receiving federal funds. To do this, the Initiative will prioritize investigation and litigation of False Claims Act claims against these institutions. Moreover, the Initiative “strongly encourages” private whistleblowers—or relators—to also bring qui tam actions in support of the DOJ’s goal to eradicate DEI programs. The announcement emphasizes that False Claims Act actions can subject defendants to large damages awards and penalties—far above the original amount of federal funding received.
Higher education is an initial focus of the new administration’s anti-DEI enforcement. The DOJ is investigating multiple universities for compliance with the Supreme Court’s decision in Students for Fair Admissions. In the Justice Department’s view, it is illegal to use “DEI discrimination in selecting students for admission.” As part of the resolution of its investigation into the University of Virginia’s DEI efforts, the DOJ has pressured the school’s president, James E. Ryan, to resign. Ryan announced last Friday he will step down. Beyond investigations, the DOJ has threatened to sue multiple universities and entities in Illinois for participating in a scholarship program targeted toward specific racial groups. Following that threat, several universities ended their involvement in the scholarship program. And the Illinois Board of Higher Education suspended the program until the state’s General Assembly can review it in session. Moreover, the Justice Department has made clear it considers requirements to “demonstrate ‘a commitment to diversity’” to be “deeply problematic” even if schools are not required to actually be diverse.
Attorney General Bondi also recently announced a lawsuit against the Maine Department of Education for alleged Title IX violations. She indicated that the lawsuit was part of a strategy that includes revoking grants issued through other departments and potentially retroactively revoking funds. The DOJ is demanding that transgender female students be barred from sports, locker rooms, and bathrooms designated for females. The DOJ would also require the defendants to rescind recognitions given to transgender female athletes and award them, along with an apology letter, to the female athletes who were next-in-line.
The Department’s anti-DEI theory of civil rights laws is expanding further in the employment context. The DOJ is arguing in a court filing that the Mansfield Rule, which is adopted by many law firms, violates federal law and may be the basis of action taken against firms that have adopted it.3 Mansfield certification requires that participants aim to consider an applicant pool that includes at least 30 percent position-qualified and underrepresented candidates. Although this strategy to increase diversity does not mandate any quotas in final hiring decisions, the DOJ asserts that it is illegal to consider diversity at any stage of the process.
Yet another lawsuit shows that the DOJ may also view post-hiring racial consideration as a violation of Equal Protection. The DOJ intervened in a case challenging an Illinois requirement that nonprofits disclose officers’ and directors’ demographic information. This reporting requirement might provoke nonprofits to increase diversity, which the DOJ believes would be illegal discrimination.
Many Republican state attorneys general are following the federal government’s lead by battling DEI. Twelve of these attorneys general sent a letter to law firms indicating their interest in investigating and disrupting DEI programs alongside the U.S. Equal Employment Opportunity Commission (EEOC). The states and EEOC have expressed concern that practices such as diversity student fellowships and hiring goals violate Title VII of the Civil Rights Act. Additionally, Florida Attorney General James Uthmeier is investigating proxy advisors for potential antitrust and unfair trade practices violations tied to DEI and ESG (environmental and social justice) investing policies. These states appear poised to combat DEI through whatever means available.
Recent high court decisions reflect support for further constriction of DEI-related policies. In Ames v. Ohio Department of Youth Services,4 the Supreme Court lowered the standard for proving reverse discrimination claims by rejecting application of the heightened background circumstances test and thereby making it easier for majority plaintiffs to obtain relief. In addition, in Kousisis v. U.S.,5 a Supreme Court case related to the application of the federal wire fraud statute to federal contracts involving disadvantaged business enterprises (DEB), Justice Clarence Thomas issued a concurrence that raised concerns about the constitutionality of DBE programs. This trend, at least at the Supreme Court, may continue.
Organizations should consider that the federal government and many states intend to aggressively fight DEI throughout American society. Enforcement officials are telegraphing a “universal application” of their view that “eliminating racial discrimination means eliminating all of it” including all DEI efforts.6 This changing landscape calls for organizations to evaluate their risks.
[1] Exec. Order No. 14173, 90 Fed. Reg. 8633 (Jan. 21, 2025); Memorandum from the Attorney General, Ending Illegal DEI and DEIA Discrimination and Preferences (Feb. 5, 2025), https://www.justice.gov/ag/media/1388501.
[2] See Memorandum, supra (citing Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 206 (2023)).
[3] See Perkins Coie LLP v. U.S. Department of Justice, 1:25-cv-716, Dkt. 143 at 16–20 (Apr. 16, 2025).
[4] 605 U.S. ____, 145 S.Ct. 1540 (2025).
[5] 605 U.S. ____, 145 S. Ct. 1382 (2025).
[6] See American Alliance for Equal Rights v. Bennett, 1:25-cv-669, Dkt. 28, at 2 (Mar. 13, 2025) (quoting Students for Fair Admissions, 600 U.S. at 206) (cleaned up)).
