Trump's Anti-DEI Order: Radical and Rooted in Civil Rights Law
The legal details of the executive order could spur a vast ripple effect across America. Institutions opposed to colorblind policies may face steep penalties and investigations.
This commentary was published in partnership with RealClearInvestigations.
Marc Morial, president of the National Urban League, convened a panel of civil rights leaders last month to assail President Donald Trump’s executive order on “ending illegal discrimination and restoring merit-based opportunity.” The so-called anti-DEI order, Morial claimed, was an effort to “reverse the gains of the last seventy years.”
“Diversity, equity and inclusion are aligned with American values,” declared Morial. To any critics claiming that DEI represents “some sort of preference program” that “divides Americans,” Morial scoffed. “We say, absolutely not.” Morial then argued that the organizations gathered there would crusade to protect DEI and “the notion that everyone has an equal opportunity.”
This response of the civil rights establishment was more than simply a vow of resistance to the Trump order; it reflected opposition to a long-cresting sea change in racial politics in America.
In 1963, the Urban League was one of the groups that participated in Dr. Martin Luther King Jr.’s March on Washington, where King envisioned a nation for his children not “judged by the color of their skin but by the content of their character.” During this period, non-white Americans faced legal and cultural barriers to full participation in civic life, from school segregation to rampant discrimination in employment and housing opportunities.
Much has changed over the years. The Trump executive order was issued to counter a new form of discrimination as the pendulum has swung in the opposite direction. Many organizations, in an attempt to address anger about historical injustices, have fostered bias against groups perceived as privileged – particularly white and Asian men – and have developed explicit policies designed to advantage those perceived as disadvantaged.
Over the last decade, Morial’s Urban League has adopted the very types of discriminatory racial practices that were once condemned by early civil rights leaders seeking a truly colorblind society. A few years ago, for instance, the Urban League helped administer a $10 million grant program that excluded applicants by race. The program was limited to “500 Black-owned businesses.” More recently, the Urban League defended a venture capital firm that ran a black women-only grant program that was found in violation of civil rights laws over its exclusion of Americans based on immutable characteristics.
Such overtly discriminatory programs have pervaded society, from education to health care to hiring practices. SSM Health, a Catholic health system, for instance, developed a scoring system to award doses of Regeneron, the antibody treatment for COVID-19, using racial demographics. Those identifying as “non-White or Hispanic” race were awarded seven additional points on the twenty point scale that determined those eligible for treatment.
These patterns of discrimination faced a major rebuke in the historic Students for Fair Admissions lawsuit against Harvard University. The litigation exposed rampant bias against Asian applicants, who faced special barriers based solely on race, which Harvard attempted to disguise using a “positive personality trait” category. In 2023, the Supreme Court ruled in favor of an activist group and found that the university, in a bid to achieve diversity-related goals, had illegally engaged in racial discrimination in violation of the Equal Protection Clause of the 14th Amendment.
The court ruling against affirmation action, though seen as a major victory in the march toward a race neutral and merit-based society for many critics, could be just the beginning.
While much of the news around the anti-DEI executive order has focused on government agencies shuttering websites devoted to diversity officers or closing down racial affinity groups for federal workers, many corporate leaders have struck a defiant tone since the election.
Sophie Bellon, the chief executive of Sodexo, the food and facilities management conglomerate, told investors her company is “intensifying our initiatives on diversity, equity, and inclusion.
When asked last month whether Delta Airlines would rethink its DEI programs, Peter Carter, an executive vice president at the company, was resolute.
“No, we are not,” said Carter, speaking on an investor call. “We are steadfast in our commitments because we think that they are actually critical to our business.”