Update on Attorney General Pam Bondi’s “First-Day” Directives
Client Alert | February 6, 2025
Gibson Dunn’s DEI Task Force is available to help clients understand what these and other expected policy changes will mean for them and how to comply with new requirements.
On February 5, 2025, Attorney General Pam Bondi issued 14 “first-day” directives, including two memos targeting diversity, equity, and inclusion (DEI) initiatives at private companies, among educational institutions, and within the Department of Justice (DOJ).
Both memos state in identical footnotes that their prohibitions do not extend to “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.” Rather, the memos appear to target programs and policies that “engag[e] in exclusion or discrimination.” The memos are largely consistent with the requirements of President Trump’s Executive Order 14173, although certain aspects extend beyond President Trump’s EO—including by raising the possibility of criminal investigation into DEI initiatives, which EO 14173 does not contemplate.
The first memo, entitled “Ending Illegal DEI and DEIA Discrimination and Preferences,” directs the Department of Justice’s (DOJ) Civil Rights Division to “investigate, eliminate, and penalize illegal” DEI “preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.” The memo requires the Civil Rights Division and the Office of Legal Policy to jointly submit a report by March 1, 2025, containing recommendations for enforcing federal civil-rights laws and “taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences.” Consistent with the requirements of Executive Order 14173, the report must, among other things, identify “specific steps or measures to deter the use of DEI” programs or principles that constitute illegal discrimination, “including proposals for criminal investigations and for up to nine potential civil compliance investigations of entities that meet the criteria outlined” in EO 14173. Those entities include publicly traded corporations, large non-profit corporations or associations, foundations with assets of $500 million or more, State and local bar and medical associations, and institutions of higher education with endowments over $1 billion. The report must also address “potential litigation activities (including interventions in pending cases, statement of interest submissions, and amicus brief submissions), regulatory actions, and sub-regulatory guidance.” While DOJ has enforcement authority under Title VI (which prohibits race discrimination by recipients of government funds) and the False Claims Act (applicable to government contractors and others who make claims for payment to the government, for false certifications of compliance with conditions of payment like the one specified in the EO), it enforces Title VII (which prohibits employment discrimination) only with respect to state and local government entities. However, it also sometimes files statements of interest in private sector Title VII cases. The Attorney General has also tasked DOJ with identifying other methods to pursue the memo’s aims—and those stated in President Trump’s recent executive orders—within the private sector.
The memo further states that the DOJ will work with the Department of Education to “issue directions, and the Civil Rights Division will pursue actions, regarding the measures and practices required to comply with” the Supreme Court’s decision in Students for Fair Admissions v. Harvard.
The second memo, entitled “Eliminating Internal Discriminatory Practices,” eliminates DEI initiatives within the Department of Justice. Citing Executive Order 14173, which terminated DEI programs within the federal government, the memo directs all DOJ 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” to implement the executive order. It specifically instructs the components to pay attention to any training and programs, including references to “unconscious bias,” “cultural sensitivity,” and “inclusive leadership.” In place of “race- or sex-based preferences, diversity hiring targets, or preferential treatment based on” DEI-related criteria, new DOJ guidance will avoid “identity-based considerations in employment, procurement, contracting, or other Department decisions.” The updated guidance will also “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 memo directs each DOJ component to submit a report to the Attorney General by March 15, 2025, detailing the progress it has made in ending DEI initiatives within the DOJ. The report must further identify federal contractors, suppliers, vendors, and grantees who have provided DEI training or DEI training materials to agency or department employees since January 20, 2021, as well as federal grantees who received federal funding to provide or advance DEI or environmental justice programs, services, or activities since January 20, 2021. The memo appears consistent with Executive Order 14151, which directed federal agencies to “ terminate, to the maximum extent allowed by law . . . all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts; and all DEI or DEIA performance requirements for employees, contractors, or grantees,” and to “provide the Director of the OMB” with related contractor and grantee information.
Attorney General Bondi’s other memos state a general policy of “zealous advocacy on behalf of the United States,” including “aggressively enforcing criminal and civil laws enacted by Congress”; prioritizing immigration enforcement; and ending DOJ funding for “sanctuary jurisdictions” that refuse to comply with federal immigration officials pursuant to 8 U.S.C. § 1373(a). The Attorney General has also restored the policy direction from the first Trump Administration that, “in the absence of unusual facts, prosecutors should charge and pursue the most serious, readily provable offense.”
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. To learn more about these issues, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s DEI Task Force, Labor and Employment practice groups, or the following authors and practice leaders:
Jason C. Schwartz – Partner & Co-Chair, Labor & Employment Group,
Washington, D.C. (+1 202.955.8242, jschwartz@gibsondunn.com)
Katherine V.A. Smith – Partner & Co-Chair, Labor & Employment Group,
Los Angeles (+1 213.229.7107, ksmith@gibsondunn.com)
Gregg Costa – Partner & Co-Chair, Trials Group,
Houston (+1 346.718.6649, gcosta@gibsondunn.com )
Stuart F. Delery – Co-Chair, Administrative Law & Regulatory Practice Group,
Washington, D.C. (+1 202.955.8515, sdelery@gibsondunn.com)
Mylan L. Denerstein – Partner & Co-Chair, Public Policy Group,
New York (+1 212.351.3850, mdenerstein@gibsondunn.com)
Cynthia Chen McTernan – Partner, Labor & Employment Group,
Los Angeles (+1 213.229.7633, cmcternan@gibsondunn.com )
Lindsay M. Paulin – Partner & Co-Chair, Government Contracts Group,
Washington, D.C. (+1 202.887.3701, lpaulin@gibsondunn.com)
Zakiyyah T. Salim-Williams – Partner & Chief Diversity Officer,
Washington, D.C. (+1 202.955.8503, zswilliams@gibsondunn.com)
Molly T. Senger – Partner, Labor & Employment Group,
Washington, D.C. (+1 202.955.8571, msenger@gibsondunn.com)
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