As the second Trump administration takes shape, diversity, equity and inclusion (DEI) programs both in corporations and higher education are continuing to be challenged.
Corporate DEI Programs
After the Supreme Court’s decision in Harvard/UNC, the foes of DEI have been chipping away at corporate DEI programs steadily. Since the decision, Stephen Miller and his America First Legal group have filed 36 complaints with the Equal Employment Opportunity Commission (EEOC) and a few with Office of Federal Contract Compliance Programs (OFCCP), which led to the recent response against United Airlines and Southwest Airlines.
Edward Blum, who won the Harvard/UNC decision with his Students for Fair Admission group, established a new group, American Alliance for Equal Rights, to challenge aspects of corporate diversity programs such as scholarships, internships, and other programs open only to certain groups.
Most recently, conservative influencer Robby Starbuck threatened companies with boycotts by his followers to move 13 corporations to cut back or eliminate their DEI programs including Caterpillar, Ford, Harley-Davidson and John Deere. He has focused his attacks on consumer-facing corporations with conservative customers, with Walmart being the latest company to announce changes including dropping participation in the Human Rights Campaign’s annual survey, The Corporate Equality Index.
Corporations are toning down their communications on their DEI programs including their supplier diversity programs. They are modifying those portions of their programs that favor specific groups such as internships and scholarships. The percentage of large, publicly traded companies tying executive compensation to achieving DEI goals has dropped as well.
Higher Education Programs
Public colleges in Texas, Florida, Kentucky, and North Carolina have cut back or banned DEI programs and jobs in response to actual or threatened bans by conservative state legislatures. Even the University of Michigan is weighing changes to its diversity program based on expected changes required by the new administration.
There’s an expectation that the new administration will investigate allegations of anti-Semitism at universities during student protests in response to Israel’s invasion of Gaza after the Hamas attacks.
New Administration Expected to Attack DEI
It’s expected that the new administration will continue issuing Executive Orders that restrict DEI programs.
Vice President J.D. Vance has introduced a bill that would bar the federal government from hiring contractors with pro-DEI practices and would redefine DEI as discrimination by amending the Civil Rights Act of 1964. It would classify directors as employees making them subject to Title VII of the Civil Rights Act and would prevent the federal government and self-regulatory organizations from establishing and implementing DEI initiatives.
Federal Judge Rejects Boeing Plea Over DEI Requirements
A federal district judge nominated by President Trump during his first term rejected Boeing’s plea bargain with the Department of Justice partly because of his concerns that diversity was among the criteria to be used to select the independent monitor charged with ensuring that Boeing complies with its agreement with the government. According to Judge Reed O’Conner of the Northern District of Texas:
In a case of this magnitude, it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency. . . . The parties’ DEI efforts only serve to undermine this confidence in the Government and Boeing’s ethics and antifraud efforts. Accordingly, the diversity-and-inclusion provision renders the plea agreement against the public interest.
The judge’s language pits diversity and inclusion factors against a merit-based decision, and that reflects the conservative antipathy to DEI programs.
5th Circuit Strikes Down NASDAQ Diversity Rule
The U.S. 5th Circuit Court of Appeals en banc decided the NASDAQ rule attempting to diversify corporate boards violated the Securities and Exchange Act of 1934. The majority of nine judges held that Congress passed the Act to protect investors and the American economy from speculative, manipulative, and fraudulent practices, and the Securities and Exchange Commission (SEC) cannot approve “even a disclosure rule unless it can establish the rule has some connection to an actual enumerated purpose of the Act.”
The NASDAQ rule required companies listed on the exchange to have at least two corporate board members from “diverse” backgrounds or explain in filings why they do not.
However, Naval Academy Can Use Race in Admissions
A federal district court judge held that the Naval Academy could continue to consider race in certain aspects of its admission process, rejecting Edward Blum’s Students for Fair Admissions challenge.
The judge found the Academy had demonstrated that the military has decades of experience in dealing with the repercussions of the failure to diversify its Navy and Marine Corps. The Trump administration could direct all the service academies to stop using race in admissions.
Written by the editors of the Federal Employment Law Insider.