President
The new Trump orders are a broader attack on diversity, equity, and inclusion than his 2020 order, which restricted the topics federal agencies, the military, and federal contractors could cover in diversity training. It was partially blocked after LGBTQ+ aid groups sued, alleging it was overly vague and infringed on their freedom of speech and violated due process rights.
Civil rights advocacy groups like Lambda Legal and the Southern Poverty Law Center responded to Trump’s second-term DEI executive orders with statements of resounding condemnation. They foreshadowed likely litigation that will further test the bounds of Trump’s efforts to curtail diversity work, even at private companies.
Trump’s anti-DEI orders “share many of the same flaws as the executive order we enjoined last time around,” said Camilla Taylor, deputy legal director for litigation at Lambda Legal, which represented groups that challenged Trump’s 2020 order. His latest directives attempt to ban DEI “without defining it, imposing a sort of Orwellian trolling on anyone who takes any steps to address bias.”
But the president’s second effort at sinking DEI efforts is crafted as potentially more durable against court challenges, particularly free speech claims, since its restrictions focus more on hiring preferences than training topics, employment attorneys said.
Trump mandated elimination of DEI programs at federal agencies shortly after his inauguration. He followed with a Jan. 21 order calling for private companies with federal contracts, which comprise some of the nation’s largest corporations, to certify they don’t engage in illegal DEI. They must refrain from considering characteristics like race and sex in their employment practices in a manner the administration deems biased, he said.
The Jan. 21 “executive order reaches beyond the federal workforce into the private sector and aims to remake a whole host of effort by companies, institutions, and foundations,” said Lauren J. Hartz, an attorney at Jenner & Block LLP, whose work includes defending corporate DEI programs. “This executive order is likely to come under legal attack by a range of companies that have interests and rights in how they shape their workforces and live their values.”
The Trump administration is prepared to defend its policies in court against those who oppose “his wildly popular agenda,” said Harrison Fields, White House principal deputy press secretary, in a written statement.
Litigation Playbooks
Those attacking Trump’s new orders in court have previous litigation paths to follow, but they may only take them so far. The president altered aspects of his latest DEI assault since the 2020 order, which the Biden administration ultimately rescinded.
The US District Court for the Northern District of California judge who partially blocked the Trump “divisive concepts” training ban agreed with plaintiffs that its limits on federal contractors and grant recipients likely violated their First Amendment and due process clause rights.
The advocacy groups, which received government funding, would be impeded in their missions if not allowed to train on diversity concepts that underscore those objectives, the ruling said.
The judge allowed other aspects of the EO applying to federal agencies and the military to take effect, after plaintiffs narrowed their injunction request to cover federal contractors and grant recipients.
Trump’s latest executive orders—even the portions focused on private-sector employers—might be less vulnerable than his first-term orders to a First Amendment challenge, because they’re directed more toward reining in discriminatory hiring preferences than training topics, said James Kerwin, senior counsel at Mountain States Legal Foundation, who represents individuals challenging employer DEI programs.
“Most of the language relates to ending racial preferences in a lot of different areas,” he said. “This has been a long time coming. It has been clear that a lot of affirmative action programs, where the government is doing it at least, are not consistent with the Constitution.”
The Trump administration’s new policies demonize DEI broadly, including many legal, nondiscriminatory approaches to broadening candidate pools and reaching underrepresented groups, said ReNika Moore, director of the ACLU’s racial justice program.
“The law absolutely allows these. We know that courts have examined and many have found they are fully in compliance with existing law,” she said.
Florida Fights
Another set of cases challenged Florida’s 2022 “Stop WOKE” law backed by Gov. Ron DeSantis (R) that restricted private-sector employers from endorsing specific concepts in DEI trainings and banned similar concepts from university and K-12 classroom instruction.
A Florida federal district court and then the US Court of Appeals for the Eleventh Circuit blocked the portions of the law applying to the private sector after companies sued.
The appeals court found First Amendment violations, rejecting the state’s argument that the law regulated conduct of employers that hold mandatory trainings, not speech itself. The court didn’t rule on plaintiffs’ claims the law was also unconstitutionally vague and overbroad.
But those speech protections appeared a weaker argument in a separate challenge to the portion of the law restricting public university professors’ teaching on race and gender issues. The state’s claims got a more receptive hearing from another Eleventh Circuit panel last June.
The judges seemed to view it as the state’s prerogative to mandate how state employees do their jobs, though they have not yet ruled on the appeal.
Trump has substantially more legal cover as chief executive to limit DEI programs within federal agencies than he does at contractors and private companies, employment attorneys agreed.
However, he’s still likely to encounter pushback even if it’s through organized labor and not the courts.
“If agencies attempt to implement changes that conflict with our CBAs, we will be prepared to file grievances to uphold the negotiated terms,” said Tim Kauffman, spokesman for the American Federation of Government Employees.
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