In the opening weeks of the second Trump presidency, the supposed wrongs of DEI have been used to justify just about everything. Diversity, equity and inclusion policies have been blamed for a tragic aviation disaster and used to justify firing independent agency officials and accessing the nation’s sensitive payment systems and private personal data.
It can be difficult to take seriously these attacks by an administration that appoints staggeringly unqualified individuals to high posts, allows unvetted billionaires and teenagers access to sensitive government databases, and retaliates against public servants who hold wrongdoers accountable. But we must.
The assault on DEI is based on a misleading caricature of these policies and their beneficiaries. It is an attack on well-established principles of equality, based on highly dubious interpretations of the law. And it is designed to bully employers and educators into dangerous and potentially unlawful overcompliance.
Opponents often characterize DEI as “preferences” or “special treatment.” But attacks on DEI threaten a wide range of policies that seek to realize the promise of civil rights law: to advance equal opportunity for all Americans. These benefit not only women, people of color and gay and transgender individuals, but also military veterans, people from impoverished or rural areas, religious minorities and first-generation professionals. DEI policies combat harassment and retaliation. They open the workplace to pregnant and caregiving employees and to persons with disabilities.
Critics define DEI as being in opposition to merit. But DEI’s purpose is exactly the opposite: to remove barriers and biases and ensure that employment opportunities are based on the ability to perform one’s job — not on arbitrary factors such as race, sex, religious beliefs, ancestry or country of origin. At its best, DEI benefits everyone by making workplaces fairer and more accessible. Many business and military leaders believe that diversity bolsters their organizations’ performance and profits.
DEI is not perfect. Some initiatives have arguably been counterproductive, shielded companies from liability without improving workplace conditions, or diverted resources away from policies proven to foster genuine inclusion. But these shortcomings are not Trump’s targets.
For example, Trump fired two Democrats on the Equal Employment Opportunity Commission before their terms expired. He also revoked a civil rights mainstay — an executive order that has required equal opportunity in federal contracting since the 1960s.
He ordered federal agencies to terminate all DEI programs, policies and positions for employees, contractors and grant recipients — a move now partially blocked by a federal court. He has directed the Justice Department to investigate and sue private companies who engage in “illegal discrimination and preferences, including DEI.” He has instructed the Equal Employment Opportunity Commission to rescind its enforcement guidance on workplace harassment.
The administration’s assault on DEI reaches far beyond employment. It attacks transgender and gender-expansive individuals in the military, schools, and workplaces.
Trump’s Department of Education threatens federal funding for schools engaged in a range of actions labeled DEI or humane policies on gender identity and sexuality. This has sent many employers and universities scrambling to cancel programs, close DEI offices, fire employees and purge any mention of diversity, affirmative action or gender identity. Many of these actions are premature at best, and illegal or highly questionable at worst.
For example, workplace attacks on transgender and nonbinary individuals contravene the Supreme Court’s 2020 ruling in Bostock v. Clayton County that sex discrimination includes sexual orientation and gender identity. And the administration’s undisguised contempt for trans people surely violates the basic constitutional principle that government action cannot be motivated by a “bare desire to harm a politically unpopular group.”
At the very least, the administration — and anxious employers and institutions — are getting out in front of their skis. They assume that Students for Fair Admissions v. Harvard, the 2023 Supreme Court decision that outlawed race-conscious college admissions, applies to employment — an open question. Significantly, that ruling does not address diversity policies unrelated to race and specifically permits the consideration of applicants’ experiences and identities in admissions decisions.
The executive branch and many courts until recently applied Bostock’s reasoning to other contexts, such as education, housing and health care. The Trump administration’s abrupt reversals, aided by terminations of independent agency officials and intimidation of career civil servants, also are vulnerable to legal challenge.
Trump’s anti-DEI onslaught aggressively pushes legal interpretations that have yet to be adopted by courts. A recent Department of Education letter, for example, declares that “relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law.” A school cannot, for example, “eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.”
The idea that schools and employers cannot consider racial equity in enacting race-neutral, universally applicable policies is radical enough. But the letter also could be read to prohibit reliance on factors such as socioeconomic status — previously championed as an alternative to race-conscious policies.
Employers and institutions that over-correct may leave themselves open to liability. It’s one thing to tweak policies to promote the values of DEI without preferring members of particular groups; it’s quite another to reject those values, even when neutrally applied, altogether. At a minimum, targeting employees perceived to be serving DEI functions likely has a disparate impact on women and people of color.
Moreover, it’s difficult to distinguish this anti-DEI retreat from animus — i.e., unlawful intentional discrimination — against the groups these initiatives are designed to protect. Indeed, the administration’s anti-DEI rhetoric parrots crude race- and sex-based stereotypes that the letter and spirit of our laws clearly prohibit.
Anticipatory compliance is not the only chilling echo of autocratic regimes past and present in the war on DEI. Scapegoating vulnerable minorities and erasing their histories are classic ploys by authoritarians throughout world history. We cannot allow them to succeed.
Serena Mayeri is the Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania Carey Law School.
