By: New Executive Order Targets Federal DEI Practices
By: New Executive Order Targets Federal DEI Practices
On January 21, 2025, President Donald Trump issued an Executive Order entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “Order”). The Order states that over 60 years following the enactment of the Civil Rights Act of 1964, preeminent American institutions improperly use race and sex-based preferences under the guise of “diversity, equity and inclusion” (“DEI”) and “diversity, equity, inclusion, and accessibility” (“DEIA”) in a manner that violates civil rights laws.
The Order specifically references the recent United States Supreme Court decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”), wherein a 6-3 decision, the Supreme Court held that the admissions processes at Harvard and the University of North Carolina violate Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment in the way the schools consider race. Notably, the SFFA Court held that while race cannot be used as a “plus” or deciding factor in university admissions, it does not exclude considering an applicant’s racial experiences if tied to unique character traits or abilities.
While many argue that SFFA does not outright prohibit DEI and DEIA initiatives, the Order states that all federal executive departments and agencies must “enforce anti-discrimination laws” and outright terminate all such discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. The Order expressly revokes multiple Executive Orders and a Presidential Memorandum previously issued to promote diversity and inclusion in the federal workplace, government contracting, and national security workforce, among other areas, including with respect to environmental justice in minority and low-income populations.
The Order expressly provides that the Office of Federal Contract Compliance Programs (“OFCCP”) must immediately cease:
- (a) promoting “diversity,”
- (b) requiring federal contractors to take “affirmative action,” or
- (c) allowing or encouraging any federal contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin (a practice already outlawed by SFFA and prior United States Supreme Court decisions such as Bakke v. University of California, 438 U.S. 265 (1978)).
The Order even directs the OFCCP to include language in its contracts and grants with federal contractors that states the contractors do not operate any programs “promoting DEI” that violate any applicable Federal anti-discrimination laws. The parameters of SFFA, its predecessors, and future cases addressing the SFFA opinion, must be carefully considered in analyzing what in fact violates existing anti-discrimination laws.
The Order does allow for the OFCCP to continue to enforce anti-discrimination and affirmative action initiatives for disabled persons and veterans under Section 503 of the Rehabilitation Act, 29 U.S.C. 793, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, and the Randolph-Sheppard Act, 20 U.S.C. 107 et seq. Those statutes will remain in effect under the Order.
Additional measures restricting DEI and DEIA initiatives will likely be taken against state and local educational institutions and institutions of higher learning (specifically those receiving federal funding, grants or student loan assistance) given that the Order requests that the Attorney General and the Secretary of Education jointly issue guidance within 120 days to ensure their compliance with the SFFA. Private employers nationwide can also expect to see more regulations from President Trump and his administration because the Order specifically mandates that all federal agency leaders, with the assistance of the Attorney General, take steps to advance anti-DEI/DEIA efforts in the private sector. The President has requested specific reporting to examine key sectors of concern, measures to deter DEI programs or principles, and potential federal lawsuits, among other “strategies to end illegal DEI discrimination and preferences.” Employers should pay particularly close attention to the rapid changes that are likely to be made in this area, but also be cautious as many states have their own anti-discrimination requirements that must be followed despite these changes on the federal level under the Order.
If you have questions regarding this Order, please do not hesitate to contact your favorite CDF attorney.