This week, President Trump signed a politically charged executive order to end “diversity, equity, inclusion, and accessibility” (“DEIA”) and “diversity, equity, and inclusion (“DEI”) programming in the government and private sector, including nonprofits. The order, “Ending Illegal Discrimination and Restoring Merit-Base Opportunity” (“Order”) declares it the policy of the United States that DEI programs are illegal and incompatible with civil rights law.
The Order takes several significant actions to prohibit or curtail what it calls “illegal discrimination and preferences,” including a mandate for the U.S. Attorney General, in coordination with the Director of the White House Office of Management and Budget and in “consultation with” the heads of relevant agencies, to submit a report to the White House by mid-May 2025 on DEI within the private sector. Among other recommendations, the report must include a “strategic enforcement plan” that identifies:
• “The most egregious and discriminatory DEI practitioners in each sector of concern.”
• A plan to deter DEIA within the private sector, including “up to nine potential civil investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars.”
• Litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest, and regulatory action and sub-regulatory guidance.
This action by the new administration is merely the latest in a string of measures by conservative anti-affirmative action and anti-DEI advocates to attack and dismantle programs designed to expand opportunities for historically underrepresented groups. Recent years have seen a flurry of litigation following the U.S. Supreme Court’s decision to strike down Harvard and UNC’s race-conscious college admissions policies in Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. In those cases, the Court held that the universities’ affirmative action policies discriminated against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.
The Order took immediate effect on January 21, 2025. The sweeping scope of the Order targets not just formal DEI and DEIA programs, but also all DEI principles and practices “under whatever name they may appear” and “whether specifically denominated DEI or otherwise.” It specifically calls out “large non-profit corporations or associations” for inclusion in the strategic enforcement plan as potential targets for civil investigations by the Attorney General or other federal agencies.
Yet critically, the Order leaves numerous key questions unanswered:
• What DEI activities or programming does the White House view as “illegal”, particularly given that most private sector employers must comply with various federal anti-discrimination statutes?
• What would a “civil compliance investigation” entail in this context?
• What processes would be in place to provide due process to those organizations selected for investigation?
• What are the potential outcomes and consequences of such an investigation?
• What qualifies as a “large” non-profit or association that could be recommended for an investigation?
• What criteria will the Attorney General, the Director of the White House Office of Management and Budget, and federal agencies use to develop their target lists?
Without answers to these critical questions, the impact of the Order remains uncertain. However, it is clear on the face of the Order that nonprofit organizations with stated DEI missions, goals, and/or hiring practices face a risk of increased scrutiny by federal agencies and could be targeted for civil investigations or litigation efforts, even if they do not contract with the government. The Order’s ambiguous language and aggressive posture also suggests that the administration may seek to target measures that merely foster an internal organization culture that celebrates equity, inclusion, and diversity, which could apply to most progressive workplaces.
At a minimum, in response to the Order, progressive organizations should scrutinize their public presence and closely monitor access to listservs, newsletters, social media accounts, and websites to ensure that any messaging that could be construed as advancing DEI or DEIA is only reaching its intended audiences and is crafted in clear alignment with advancing equal employment opportunity as required under the various federal anti-discrimination laws.
ELG will monitor the implementation of the Order and will keep our clients apprised of key developments. We are also available to help you assess your risk and develop a contingency plan in response to the Order or any other actions taken by the new administration. For more information regarding this Alert or how the Order might impact your organization, please reach out to your Elias Law Group contact.