A Slippery Slope

A new memo from the Department of Justice offers guidance that threatens to further restrict diversity, equity, and inclusion (DEI) initiatives at colleges and universities that receive federal funding (that is, nearly all of them).

This isn’t the first government action, either by the current administration or by state legislatures, aimed at restricting diversity initiatives in higher ed. But the DOJ memo goes beyond previous federal restrictions on DEI in an important way. Rather than simply rejecting as unlawful scholarships, trainings, or student gathering spaces that are officially restricted by race or another identity category, the memo also argues that it is unlawful to create initiatives that are not restricted by identity, if they serve in some way as “proxies” for an identity category.

That change, if codified in law or policy, would have a significant impact on colleges’ and universities’ ability to support students from underserved backgrounds, and it represents another major step along the slippery slope toward government encroachments on academic freedom, institutional autonomy, and shared governance.

Among the most striking elements of the memo is its argument—not previously made in statements from this administration—that all identity-themed cultural centers may violate federal law simply because of their titles or areas of focus. I wrote in 2024 about the impact of Utah Tech University’s closure of its Center for Inclusion and Belonging, a cultural center and study lounge that offered support for students from underserved backgrounds and identities, but that was open to all students on campus. Even colleges and universities that have closed these kinds of centers have typically maintained that they are legal to operate, so long as they place no formal restrictions on who can enter or participate.

The new DOJ memo could change that. Designating “a ‘BIPOC-only study lounge’ … even if access is technically open to all,” is, the DOJ claims, an example of “segregation in facilities or resources. … The identity-based focus creates a perception of segregation and may foster a hostile environment.” The memo’s rejection of even an “identity-based focus” suggests that the Justice Department views as illegal any attempt whatsoever to increase belonging or community for students from underrepresented groups, or to support communities of students that celebrate shared identities. Even efforts to support students from “underserved geographic areas” or “first-generation students” can be illegal, says the DOJ, if they are born of “intent to influence demographic representation” on campus.

The memo also contains a one-sided discussion of “cultural competence” and “cross-cultural skills” criteria in hiring, which implies that their only or primary use of such criteria is to “effectively evaluate candidates’ racial or ethnic backgrounds rather than objective qualifications.” It’s unsurprising that the administration would want to ban euphemistic terms that “may function as a proxy if used to evaluate candidates based on race or identity.”

But what about the many times such terms are not used for that purpose? The memo fails to acknowledge the value of cultural competence for what it is actually intended to do: identify job candidates who are skilled in working with a target population of students, not the candidates’ own racial background or identity. Cultural competence skills are valuable for students, too; in the most recent survey of employers by the American Association of Colleges and Universities (AAC&U), 77 percent of respondents reported that “working with people from different backgrounds” is a “very important” skill for job candidates. By dismissing cultural competence as a mere “proxy” for race and identity classification, the DOJ risks undermining students’ educations and restricting their ability to learn skills employers value.

As AAC&U president Lynn Pasquerella noted in Inside Higher Ed, “What is missing from the DOJ narrative on DEI is that treating people differently is not always unjust, especially when doing so corrects a broader pattern of systemic injustice. Considering race and gender in the context of historic unjust discrimination to inform policies and practices at colleges and universities doesn’t in and of itself constitute illegal discrimination, though the [memo] suggests otherwise.”

In many ways, the DOJ memo demonstrates the extent of the slippery slope that accompanies efforts to ban diversity initiatives in higher education. The DOJ no longer seems solely concerned with the types of factual questions that have preoccupied DEI opponents, such as whether students are actually given special benefits or barred from certain opportunities on the basis of their identity. It’s now also concerned with policing undefinable thought crimes, such as “proxies,” “perceptions,” and “intent,” in an effort to restrict the expression of ideas about diversity with which the administration disagrees.

If the DOJ’s memo is upheld, the endpoint of this line of thinking is clear: no mention of race, gender, or identity in an institution of higher learning is ultimately safe from being declared potentially illegal under a vague extension of existing policies. And the principle of intellectual freedom at a university—the opening of students’ minds in an environment where all are welcome and ideas can get a hearing, free from outside coercion—needs our support more than ever.