Massachusetts institutions of higher education (“IHEs”) should note that on September 23, 2025, the Massachusetts Attorney General’s Office and the Executive Office of Education released joint guidance clarifying legal protections for students and staff in educational settings (the “Massachusetts guidance”). Issued in response to evolving court precedent and federal guidance around diversity, equity, inclusion, and accessibility, the Massachusetts guidance aims to clarify the current state of the law. Notably, the guidance differs from recent Title VI guidance from the federal government, stating that those communications “misconstrue case law, misinterpret federal statutes and Supreme Court precedent, and wrongly imply that it might be unlawful for schools to consider the impact of policies, practices, and programming on diversity, equity, inclusion, and accessibility.”

IHEs should remember that both federal and Massachusetts guidance are advisory—they provide recommendations, not binding rules. Public and private IHE’s in Massachusetts should review the Massachusetts guidance in comparison with Title VI guidance from the federal government, including the July 30, 2025 memo from the Department of Justice (the “DOJ memo”), which is the subject of this prior client alert.  Working with legal counsel, institutions should assess risks, including potential compliance actions such as funding freezes or grant terminations, that may arise from various policies and practices.

This alert summarizes the Massachusetts guidance as it applies to IHE policies and practices, flags key areas of disagreement with the DOJ memo, and serves as a practical resource as institutions navigate changes in federal and state oversight.

1. Nondiscrimination laws and DEI

The Massachusetts guidance reaffirms that IHEs must comply with federal non-discrimination laws such as Title VI (race, color, national origin) and Title IX (sex), as well as state laws prohibiting discrimination based on race, sex, religion, gender identity, sexual orientation, disability, and national origin. The Massachusetts guidance states inclusive practices and programming “confer important educational and social benefits for all students” and are “essential to promoting fair treatment and eliminating stigmatization.”

Citing “[l]ongstanding legal precedent” the Massachusetts guidance indicates that IHE’s may “foster diversity across numerous dimensions, including geography, socioeconomic status, race, sex, sexual orientation, and gender identity, among others” and provides “legally complaint ways that educational institutions can continue to meaningfully and successfully achieve the worthy goal of diverse and equitable student bodies[.]” Note that this view of diversity differs from with the DOJ memo, which identifies “demographic-driven criteria,” including those targeting based on geographic area as potentially illegal “proxies” for racial discrimination.

2. Impact of SFFA

Both the Massachusetts guidance and the DOJ memo specifically address the Supreme Court’s decision in Students for Fair Admission, Inc. vs. Presidents and Fellows of Harvard College (SFFA),[1] prohibiting the consideration of an applicant’s race as a factor in collegiate admissions. The Massachusetts guidance states that SFFA “has no direct application to programs outside of higher education admissions,” but “may extend to a school’s provision of a concrete benefit or opportunity to a particular individual based on that individual’s race.” The Massachusetts guidance indicates that under SFFA, IHEs may still include diversity as part of their missions, and may use factors other than race, such as “cultural competencies, income level, first generation to attend college, neighborhood or community circumstances, disadvantages overcome, and the impact of an applicant’s particular experiences on their academic achievement and on the perspectives they would bring to the school environment.” As the Massachusetts guidance noted, this view has been upheld in a recent First Circuit decision as it applied to public secondary schools,[2] and is consistent with the text of SFFA which indicates that universities may consider characteristics other than race, including “an applicant’s discussion of how race has affected his or her life[.]” The Massachusetts guidance also indicates that institutions may recruit or target outreach in a way that aligns with their diversity goals, and may collect and evaluate data on race and ethnicity for purposes other than providing an advantage to an individual applicant based on race.

In contrast, the DOJ memo identifies “‘cultural competence requirements,’” and “‘overcoming obstacles’ narratives,” as well as geographic preferences as “potentially unlawful proxies” for race-based discrimination. The DOJ memo also indicates that any “intent to influence demographic representation risks violating federal law” and that institutions should focus “solely on nondiscrimination performance metrics” when evaluating applicants.

3. Identity-based programming

The Massachusetts guidance states that IHEs can include course offerings addressing race, sex, sexual orientation, gender identity, disability, religion, or related topics, and can sponsor student affinity groups that are “open to all students while also allowing students of particular backgrounds or common experiences to feel valued and heard.” The Massachusetts guidance indicates that “groups and spaces that focus on common experiences of particular groups do not inherently create a hostile environment” but that such groups or spaces “should be open and welcoming of students from any background.”

The Massachusetts guidance does not indicate that exclusive programs or spaces would be permissible – rather, it states that programming or facilities must be open to all, even if they are focused on particular groups. The DOJ memo, however, states that giving any facilities or programs that are “technically open to all” an “identity-based focus creates a perception of segregation and may foster a hostile environment.”  The only exceptions in the DOJ memo for division based on identity are single-sex facilities designed to “protect privacy or safety.” including “restrooms, showers, locker rooms, or lodging.”

Next Steps for Institutions of Higher Education

Massachusetts IHEs should closely review their state’s guidance alongside federal guidance and requirements and consult with legal counsel to ensure compliance and manage risk. Institutions should also update policies, train staff on nondiscrimination obligations, and develop clear protocols for investigating and addressing complaints.

Hunton’s Higher Education team continues to monitor developments in federal and state guidance and is available to assist with policy review, compliance strategies, and risk assessment. Please contact us for tailored advice on navigating these evolving requirements.

[1] 600 U.S. 181 (2023)

[2] Bos. Parent Coal. For Acad. Excellence Corp. v. Sch. Comm. For Bity of Bos., 89 F.4^th 46 (1^st Cir. 2023), cert. denied, 145 S. Ct. 15 (2024)