Is Diversity, Equity, and Inclusion Obsolete?
On January 31, 2025, U.S. President Donald J. Trump signed Executive Order 14173 (Order). The Order prohibits the use of race- and sex-based preferences reflected in Diversity, Equity, and Inclusion (DEI) plans. The Order prohibits multiple entities from granting preference to any individual based on race, national origin, and/or sex. Among parties subject to the Order are Federal agencies (whose heads sit on the President’s Cabinet), major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, public school districts, federally-funded institutions of higher education, non-profit organizations, foundations, state and local bar associations, and medical associations.
The Order asserts that current DEI practices violate the Federal civil rights laws that prohibit discrimination on the basis of race, national origin, and sex. The Order categorizes DEI as an identity-based spoils system. According to the Order, DEI principles prioritize how people are born instead of what they are capable of doing. It asserts that the concept of DEI undermines individual initiative, excellence, and hard work.
The affected parties take a different view of DEI than the Order. They hold that DEI principles seek to promote the fair treatment and full participation of all people, particularly groups who have historically been underrepresented or subject to discrimination on the basis of identity.
Consequently, on February 3, 2025, plaintiffs, including the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United and the Mayor and City Council of Baltimore, Maryland, filed suit against the President and his Cabinet (the executive branch) in the U.S. District Court of Maryland. Civil Action No. 1:25-cv-333-ABA.
On February 21, 2025, the District Court enjoined the U.S. Department of Justice and other Federal agencies from enforcing specific provisions of the Order. In particular, the Court enjoined the agencies from requiring Federal contractors and grantees to certify they do not operate DEI programs.
On March 14, 2025, the U.S. Court of Appeals for the Fourth Circuit stayed the preliminary injunction issued by the District Court. The Federal government can now implement and enforce the challenged Order temporarily while the litigation continues.
The plaintiffs, their members, and their constituents receive Federal funds as grantees or contractors. Many of the grants and contracts support historically underserved groups by fostering equity and inclusion through economic stability, entrepreneurial opportunity, and environmental health. The plaintiffs ask the Court to declare the Order unconstitutional. In addition, the plaintiffs ask the Court to enjoin Federal agency heads from enforcing the Order. They oppose the mandate to end all DEI programs and to cease support for DEI principles.
The plaintiffs claim that the Order violates the Free Speech Clause of the First Amendment of the Constitution. They maintain that the Order impermissibly restricts their constitutionally protected speech based on content and viewpoint. In their view, the Order suppresses free speech by suppressing the promotion of DEI values. They argue that the First Amendment protects the right of scholars, teachers, researchers, and others to speak, write, and teach without economic retaliation based on viewpoint. They argue that the Order does not delineate how DEI programs or initiatives can be considered violative of the text and spirit of Federal civil rights laws.
Contrary to the plaintiff’s belief, the Order declares that it does not prevent First Amendment-protected speech. To illustrate, the Order states that it does not prohibit faculty at federally-funded institutions of higher education, as part of larger courses of academic instruction, from advocating for, endorsing, or promoting DEI. The plaintiffs also do not recognize that the Order only mandates Federal agencies to terminate programs promoting DEI if such programs violate applicable Federal anti-discrimination laws. The question remains… do DEI programs violate those laws? The plaintiffs request a trial by jury to resolve this issue.
Madonna T. Lechner was an Investigator and Team Leader with the Office for Civil Rights, U.S. Department of Education, from 1973 through 2007.