On Feb. 5, 2025, Attorney General Pam Bondi issued two memos to align DOJ’s activities with President Trump’s executive orders on Diversity, Equity, and Inclusion (DEI). One memo directed all Department components to “thoroughly evaluate consent decrees, settlement agreements, litigation positions (including those set forth in amicus briefs), grants or similar funding mechanisms, procurements, internal policies and guidance, and contracting arrangements” for consistency with the orders. The memo required the agency to rescind any materials that “encouraged or permitted race- or sex-based preferences as a method of compliance with federal civil rights laws.”
The memo also directed all Department components to issue updated guidance to “narrow the use of ‘disparate impact’ theories that effectively require use of race- or sex-based preferences” and “emphasize that statistical disparities alone do not automatically constitute unlawful discrimination.”
The disparate impact theory is commonly used to enforce bedrock civil rights protections where workplace practices or decisions by federal funding recipients appear neutral on their face but disproportionately affect people based on their race, sex, disability, or other protected trait. Notably, the disparate impact standard does not prohibit any disproportionate effect. While the specific legal test varies across civil rights, housing, employment and other fields, proving disparate impact generally requires extensive statistical evidence showing the particular policy or decision caused a significant, adverse impact on the protected group, and if the policy’s goals are legitimate, the plaintiff or complainant must also show that there is a less discriminatory alternative to accomplish the same policy goals.
The second memo required DOJ’s Civil Rights Division and Office of Legal Policy to submit a report with recommendations to “end illegal discrimination and preferences, including policies relating to DEI and DEIA” in the private sector, including proposed criminal investigations. The memo also directed DOJ’s Civil Rights Division to work with the Department of Education to ensure educational institutions comply with the Supreme Court’s decision in Students for Fair Admissions.