Central Campus at Cornell University, photo by Eben Hill
On July 29, Attorney General Pam Bondi issued a guidance memorandum to advise all federal agencies on the Trump Administration’s interpretation of the non-discrimination requirements of the 14th Amendment, the 1964 Civil Rights Act, and Title IX. The memo closes various loopholes used to evade the Trump Administration’s efforts to end Diversity, Equity, and Inclusion (DEI) programs.
Cornell has elevated the July 29 memo by signing an agreement with the Trump Administration on November 7, promising to include the memo in training materials for faculty and staff. Further, on October 22, the University of Virginia signed an agreement promising “to apply Civil Rights Law internally according to the” memo. Similar provisions are expected in settlement agreements as more schools settle with the Trump Administration.
Prior administrations had issued Executive Orders, regulations, and interpretive rules to lead federal agencies and the contractors that they fund, such as Cornell, to view adopting DEI programs as an essential part of complying with the non-discrimination requirements. Executive Orders issued early in Trump’s Presidency took the opposite view and ordered an end to DEI programs as discriminatory and illegal.
The memo is binding on all federal agencies in their enforcement of these laws. For example, when the Department of Education’s Office of Civil Rights (OCR) applies non-discrimination laws to universities, the interpretation in the memo will govern, even if OCR had taken the opposite view in prior cases.
Because the memo is just guidance rather than a final agency action, it is not subject to judicial review. However, when OCR or other federal agencies take action against specific federally funded entities based on the memo, those interpretations will probably be subject to court challenges.
Although the Trump Administration’s opposition to DEI has been very clear, a number of universities have been continuing allegedly discriminatory practices by changing the name of the programs instead of their substance. For example, a DEI official at the University of Iowa was caught on an undercover video allegedly claiming that she continues to implement DEI despite the Trump Executive Order and a separate Iowa law banning DEI at state-supported Iowa universities. The video is now the subject of an Iowa Attorney General investigation and condemnation by the University of Iowa’s President and Board of Regents.
RELATED: Federal Government Cracks Down on Racial Discrimination
The July 29 memo makes clear that even if there is no state-level DEI ban, discrimination based upon race, religion, or national origin is subject to “strict scrutiny.” The memo also notes discrimination based upon sex is subject to “heightened scrutiny.” The name of the discriminatory program is irrelevant, so the federal government is expecting the DEI programs to end, and not just scrubbing DEI phrases from websites.
The memo lists specific illegal practices as examples, including “granting preferential treatment based upon protected characteristics”:
- Race-Based Scholarships or Programs: “Such race-exclusive programs violate federal civil rights law by discriminating against individuals based solely on their race or treating people differently based on a protected characteristic without meeting the strict legal standards required for race-conscious programs.”
- Preferential Hiring or Promotion Practices: “A federally funded entity’s DEI policy prioritizes candidates from ‘underrepresented groups’ for admission, hiring, or promotion, bypassing qualified candidates who do not belong to those groups, where the preferred ‘underrepresented groups’ are determined on the basis of a protected characteristic like race.”
- Access to Facilities or Resources Based on Race or Ethnicity: “A university’s DEI initiative designates a ‘safe space’ or lounge exclusively for students of a specific racial or ethnic group.”
In addition, the memo attacks evading the non-discrimination requirements by using a proxy for the “protected characteristic.” These actions are illegal if they “are implemented with the intent to advantage or disadvantage individuals based on protected characteristics.”
The non-discrimination requirements cannot be evaded by having a third party fund or conduct the program. “Recipients of federal funds should ensure federal funds do not support third-party programs that discriminate.”
The memo requires federally funded programs to establish whistleblower protections. “Establish Clear Anti-Retaliation Procedures and Create Safe Reporting Mechanisms: Implement and communicate policies that prohibit retaliation against individuals who engage in protected activities, such as raising concerns, filing complaints, or refusing to participate in potentially discriminatory programs. Include these policies in employee handbooks, student codes of conduct, and program guidelines. Provide confidential, accessible channels for individuals to report concerns about unlawful practices.” This requirement appears to be the opposite of Cornell’s existing bias incident reporting system.
During the spring 2025 semester, Cornell hired an outside law firm to review all of Cornell’s DEI practices in light of the Trump Executive Order and a Department of Education memorandum. With the new, specific guidance from the Attorney General setting a more detailed compliance expectation, perhaps a fresh review is needed.
Cornell is already the subject of a federal investigation for alleged antisemitism and improper DEI practices. This memo, although issued after the start of that investigation, will be applied to Cornell’s alleged discrimination and hostile environment.
A basic reason why Cornell hired DEI officials was their expertise in federal non-discrimination requirements. With this area of the law shifting 180 degrees during the past ten months, it is difficult for members of the Cornell community to trust the compliance advice of these same DEI officials who so enthusiastically advocated DEI policies just weeks ago.
The America First Policy Institute has filed a complaint with OCR, the Department of Justice, the Department of Health and Human Services, and the Equal Employment Opportunity Commission, challenging Cornell’s faculty hiring practices under its DEI policies based upon webpages and internal emails. In addition, one unsuccessful applicant for a biology faculty position has also filed a complaint. That case was not covered by the Cornell settlement.
In response, on June 27, President Kotlikoff and Provost Bala issued a public statement noting, “Over the past year, the university has further enhanced its compliance with civil rights laws by engaging outside law firms to audit policy and practices to reflect changes in law or regulations, taking swift corrective action where necessary.” They assert, “The university trains faculty and staff on recruitment practices that comply with our non-discrimination policy. Cornell maintains an office that investigates and addresses any claims of bias or discrimination.” They conclude, “In thousands of hiring decisions in hundreds of departments and units, misunderstandings of policies can occur. If discrimination or bias is observed at any stage in any hiring process, it should be reported and will be corrected. The university does not tolerate unlawful discrimination in hiring or any other aspect of any university program or practice, and the university has taken and will continue to take prompt, effective, and appropriate action to respond to any and all allegations of any violation of law or the university’s equal opportunity and antidiscrimination policy.”
Accepting that these claims were true based upon the June 27 interpretation of non-discrimination laws, the question still remains whether they meet the interpretation in the July 29 memo.
University of Connecticut
On May 1, 2023, the University of Connecticut (UConn) University Senate adopted as a new university-wide graduation requirement “one-credit course titled U.S. Anti-Black Racism.” Based upon the July 29 memo, UConn’s General Counsel found the requirement to be illegal, and a committee recommended repealing the requirement. UConn’s senate then debated repealing the requirement on October 6.
“We put this in place back in 2020, and it was partially in response to Black Lives Matter and George Floyd’s death, and the conditions that necessitated an anti-black racism course have not gone away,” university senator Martha Cutter said. The UConn University Senate postponed a decision to its November meeting.
