As the college admissions cycle heats up, university officials have plenty of questions regarding what they can and cannot consider on a prospective student’s application. Many have questions about how to comply with the federal government’s crackdown on the use of what it refers to as “illegal DEI.” 

Throughout 2025, the Department of Education and the Department of Justice have issued numerous memoranda and guidance documents, articulating their construction of the landmark case of Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 US 181 (2023), and warning schools about using unlawful trait-based decision-making related to educational opportunity. 

One was the DOJ’s Feb. 5, 2025, memorandum announcing an initiative to examine and investigate institutions’ use of DEI-related programs in unlawfully discriminatory ways; the DOJ also issued a May 19, 2025, memorandum establishing a plan to use the False Claims Act as an avenue to investigate and eliminate discriminatory practices or preferences that may be “camouflaged with cosmetic changes that disguise their discriminatory nature.” 

These culminated in the most robust directive to date, Attorney General Pam Bondi’s July 29, 2025 “Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination” (“Guidance”). This Guidance addresses four “unlawful practices” in detail: (1) granting preferential treatment based on protected characteristics, (2) prohibited use of proxies for protected characteristics, (3) segregation based on protected characteristics, and (4) training programs that promote discrimination or hostile environments.

For many admissions offices, the goal is to assess applicants as holistically as the law permits. Although the Attorney General and Supreme Court demand a more nuanced and narrowly tailored approach than in decades past, they also set a path for attentive admissions teams to assist disadvantaged applicants. The key, per the Guidance, is to absolutely avoid consideration of criteria related to sex, race, color, or national origin, and to be vigilant in avoiding “proxy” criteria — criteria that may appear facially neutral, but that may be designed to achieve or result in preferential outcomes related to race or sex.

 Specifically, the Guidance defines “unlawful proxy discrimination” as “facially neutral criteria” which are “designed or applied with the intention of advantaging or disadvantaging individuals based on protected characteristics.” Examples of proxy criteria in the Guidance are questions that ask applicants to describe “obstacles they have overcome” or that call for applicants to submit a “diversity statement,” in “a manner that advantages those who discuss experiences intrinsically tied to protected characteristics” as an example of a “potentially unlawful” proxy.  

On the same subject, Chief Justice John Roberts noted in Students for Fair Admissions:

A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race [or another protected characteristic].

600 U.S. 181, 231 (2023) (emphasis in original). Is there tension here? Not quite. The key is a matter of focus. The Guidance does not place a blanket prohibition on the use of essays discussing an individual’s actual experiences, even where race, sex, etc. play a role. Rather, the Guidance echoes the Supreme Court’s ban on focusing on the race, sex, or other protected characteristic of the applicant that could be deduced from these experiences. Put simply, an admissions team must focus on the applicants’ character, not their characteristics.

What does this mean for admissions officials? Holistic review remains legal, but the use of holistic criteria can still attract scrutiny if not properly documented. If the criteria look or sound like a proxy, an institution should consider whether it has and can establish a clear, non-discriminatory reason as to why it is using the criteria and reiterate its commitment to equal opportunity. Further, per the Guidance, the institution should document clear, legitimate rationales unrelated to race, sex, or other protected characteristics. 

Lastly, university leadership should monitor to “ensure these rationales are consistently applied and are demonstrably related to legitimate, nondiscriminatory institutional objectives.” Ultimately, specific facts, criteria, and policies should be carefully evaluated for compliance, so it is always wise to consult legal counsel.