Trump’s initial comments on DEI and affirmative action are a fatal blow

The Associated Press

“The Trump administration is trying to give the death blow to diversity in legal and in political cultural terms,” said Noah Feldman, a constitutional law professor at Harvard Law School.
A memo from Secretary of State Marco Rubio warned State Department officials that they will face “adverse consequences” if they fail to report on colleagues who have concealed or obscured existing DEI programs at the department.
But Interior Department employees were told Wednesday that some civil rights programs are still required regardless of the executive orders, according to emails reviewed by The Post.
Advertisement Story continues below advertisement “They are handing out sheriff’s badges to private citizens to sue about government contractor DEI programs,” Schwartz said.
“It flies in the face of history and the laws themselves.” But Lennington, the legal activist, said he believes that the executive orders will be effective.

POSITIVE

President Donald Trump swiftly overturned decades of affirmative action policy in the first 48 hours of his second term, carrying out actions that observers say will undoubtedly affect every facet of American life.

Even conservative activists who had been launching a multifaceted campaign to halt diversity initiatives in the public and private sectors were taken aback by the breadth and ferocity of the recently signed executive orders to end “illegal discrimination” and restore “merit to government service.”.

Dan Lennington, deputy counsel for the Wisconsin Institute for Law and Liberty, which has spearheaded an unrelenting legal effort to declare diversity programs unconstitutional for years, said, “I can’t believe he’s going this far.”. Because I’m considering all the ways that this impacts the typical American, it’s still sinking in. “.”.

The executive order frenzy was intended to firmly end diversity, equity, and inclusion (DEI) initiatives across the federal government. The government gave U. S. . -run diversity offices to shut down and place a large number of their employees on administrative leave by Wednesday. Numerous contracting initiatives targeted at women and minorities, some of which have been in place for decades, were also suspended.

“🏛.”.

Pay attention to politics.

However, the orders extend well beyond the federal government. Legal experts warned that Trump’s directive to agencies to compile lists of publicly traded companies for investigation regarding their DEI policies might chill the private sector.

Additionally, the Justice and Education departments had to advise colleges and educational institutions on how to adhere to the Supreme Court’s historic ruling prohibiting admissions based on race.

Additionally, in a move that academics emphasized as a historic turning point, Trump revoked an executive order that Lyndon B. A significant step in the federal government’s endeavor to promote racial equality was Johnson’s 1965 directive to federal contractors to implement “affirmative action” to eradicate discrimination at their companies. Reagan attempted to amend the order in 1985 but gave up after facing strong opposition from members of Congress and business executives.

In a joint statement, the three Democratic members of the Equal Employment Opportunity Commission stated that “the equal employment principles embodied in EO 11246 have stood the test of time and remained in place through both Democratic and Republican administrations.”. By rescinding it, “a source of protection against discrimination for the millions of Americans working for companies that receive federal dollars” is eliminated. We ought to defend the civil rights of working Americans rather than undercut them. “.”.

Trump’s moves follow the Supreme Court’s decision to invalidate race-based affirmative action at Harvard University and the University of North Carolina at Chapel Hill more than a year ago. This decision sparked a fierce legal battle to eradicate DEI in the public and private sectors of government contracts. The majority of diversity programs and their supporters have since retreated, with federal initiatives for minority-owned businesses being forced to reverse key components of their missions and Fortune 500 companies like Walmart and Meta actively scaling back their programs.

As per legal experts, the Trump administration is currently expanding upon the Supreme Court’s ruling and trying to go further with it.

Noah Feldman, a professor of constitutional law at Harvard Law School, stated that the Trump administration is attempting to destroy diversity in both legal and political cultural terms.

Feldman said that by extending the reasoning of the high court’s affirmative action decision to private employers, the order issued Tuesday night, which instructs the attorney general and heads of federal agencies to determine where DEI should end, is pushing the limits of that decision. It “would be a new development, and would be significant in how corporate America would have to respond to the evolution of the constitutional and the statutory doctrine,” if the Justice Department is successful. “.”.

Yet, Feldman warned that the idea that diversity is a basic good won’t disappear overnight and that government initiatives take time to permeate culture and society.

According to Feldman, many people still take diversity very seriously and profoundly. However, there are indications that diversity can be justified in a variety of contexts. “.”.

The federal workforce was already feeling the effects of Trump’s actions by Wednesday afternoon. State Department officials were warned in a memo by Secretary of State Marco Rubio that failing to report colleagues who have hidden or masked the department’s ongoing DEI programs will have “adverse consequences.”.

The memo states, “The Administration is aware of efforts by some in government to disguise these programs.”. “Timely reporting of this information will not result in any negative outcomes. However, there could be negative repercussions if this information is not reported within ten days. “”.

Workers were asked to submit any information about these initiatives to an email address that is associated with the phrase “DEIA Truth.”. The letter “A” represents “accessibility.”. “”.

The Washington Post reviewed emails that showed similar messages were sent to Homeland Security and Education department employees.

But emails examined by The Post show that on Wednesday, employees of the Interior Department were informed that certain civil rights programs remain necessary despite the executive orders. Jennifer Koduru, the agency’s principal diversity officer and director of the Office of Diversity, Inclusion, and Civil Rights, wrote that these programs “should not be categorized as DEIA as they predate the executive orders in question and are mandated by law.”. A request for comment was not immediately answered by the press office of the interior.

According to Gibson Dunn partner Jason Schwartz, who is also co-chair of the firm’s labor and employment group, the executive orders have the potential to have a significant impact on both the private and government contracting industries. As many as “nine potential civil compliance investigations” of publicly traded companies, sizable nonprofit organizations or associations, foundations with $500 million or more in assets, state bar associations, medical associations, or universities with endowments exceeding $1 billion have been assigned to the attorney general and agency heads.

According to Schwartz, the directive was to “locate nine large whales and provide examples of them.”. “.”.

He also emphasized recent restrictions on federal grantees and contractors’ ability to take part in numerous DEI or affirmative action initiatives. Lawsuits may be brought by the government or private parties, and violations are subject to the False Claims Act, which has severe financial penalties.

According to Schwartz, “they are giving private citizens sheriff’s badges so they can sue about government contractor DEI programs.”.

According to legal experts, there will undoubtedly be legal challenges to some of the executive order.

Susan D. Carle, an American University law professor, said, “It’s going to be a really crazy ride.” She also said that there would be “a lot of litigation.”. “.”.

“We will observe if our system of checks and balances remains effective,” she continued. We will examine what the concept of separation of powers means. He’s pushing boundaries in all directions. “”.

The American Civil Liberties Union, which has pledged in the past to oppose Trump administration policies that seek to undermine DEI, stated that it was considering its options. According to ACLU spokesman Ricardo Mimbela, the group is currently “examining Trump’s executive orders, their possible consequences, and how we can defend people’s fundamental rights in the face of these assaults.”. “”.

The administration’s stance, however, is extreme and goes “far beyond what we’ve seen from prior Republican administrations,” according to ReNika Moore, director of the ACLU’s Racial Justice Program. “.”.

Although there is still a lot of uncertainty surrounding the implementation of Trump’s orders, Moore stated that “it’s clear they’re trying to create a chill and really make both the private sector and public-sector actors really think twice about efforts that are absolutely legal.”.

The rush of orders represents a dramatic change from the summer of 2020, when George Floyd’s murder sparked widespread calls for racial equity and forced corporate America to intensify its efforts to expand opportunities for historically underrepresented groups. DEI covers a broad range of initiatives aimed at diversifying businesses, educational institutions, and organizations, such as employee resource groups, anti-bias training, and mentoring and recruitment programs. However, detractors argue that racial neutrality should be the true objective and that such policies harm nonminorities.

According to Moore, one startling feature of Trump’s attacks on DEI and affirmative action is the claim that policies and initiatives put in place to remove long-standing obstacles to opportunity for marginalized groups are actually encouraging discrimination.

“I find it extremely offensive that attempts are being made to paint those who use a broad brush as discriminatory,” Moore said. Both history and the laws themselves are violated by it. “.”.

However, legal activist Lennington stated that he thinks the executive orders will work. “This cannot be avoided,” he declared. You can gamble and hope that a court will rule that this is unlawful or unconstitutional at some point, but that is a very serious business decision. “”.

Senior vice president of government relations and national engagement for the American Council on Education Jonathan Fansmith stated that the order also creates a great deal of uncertainty for universities.

He said it was very telling that the order says a report with guidelines on how to comply with the Supreme Court’s decision to forbid the use of race in college admissions will be released in 120 days. He claimed that this is a blatant indication that a broader definition is on the horizon, one that might cover topics like affinity housing, leadership initiatives for women, and scholarships based on race in addition to admissions.

Fansmith raised concerns about the clause requiring agencies to identify up to nine worst-acting examples. It’s a bit perplexing and frustrating. It’s unclear why there were nine. “”.

Universities believe their diversity programs are beneficial and serve a wide range of students, including those with disabilities, veterans, and rural students, so limiting that scrutiny to those with an endowment of $1 billion or more doesn’t make sense, he said. However, restricting the inquiry to a small portion of the roughly 4,000 colleges “certainly lends itself to being taken as a political maneuver rather than a real effort to address concerns” if the claim is that they are harmful and discriminatory. “.”.

He clarified that this does not imply that the clause will not have actual, useful consequences. There is a noticeable attempt to reduce campus activities in an attempt to encourage schools to become pre-compliant. “.”.

The force of the order astounded Christopher Rufo, an anti-DEI activist who took part in the effort to remove Harvard President Claudine Gay in January 2024.

According to his sources in Silicon Valley, Wall Street, and the Ivy League, “this is a sea change and the institutions are adjusting to the new reality,” he wrote in an email to The Post. “We prevailed. The goal of the upcoming four years is to make these changes long-lasting. “”.

Maxine Joselow, Carol D. Leonnig, and John Hudson all contributed to this report.

scroll to top