DEI Update
On February 25, we announced that a federal district court judge held the Trump administration’s executive orders regarding diversity, equity, and inclusion (DEI) unconstitutionally vague and an overly broad regulation of speech. As a result, the court issued a pause on their enforcement, preventing the freeze or termination of any awards, contracts, or obligations pursuant to these directives while litigation was pending.
On Friday, that block was lifted by an appeals court. The stay allows federal agencies to enforce the executive orders while the Trump administration’s appeal proceeds, a process that could take months. The three-judge panel found that the executive orders are narrowly tailored, applying only to federally funded activities that violate existing anti-discrimination laws, and do not broadly ban DEI efforts or terminate grants based on unrelated speech, making them unlikely to violate the First or Fifth Amendment. However, two of the judges expressed concerns that the administration’s anti-DEI directives could ultimately raise First Amendment issues if enforced beyond their narrow scope.
What does this mean for you?
As we previously advised, organizations should assess their programs and ensure DEI practices align with federal anti-discrimination statutes. We recommend:
- Refining language to focus on specific programmatic objectives rather than shorthand references that could be misinterpreted.
• Identifying ways to structure programs to emphasize broad inclusion without being deemed “discriminatory.” - Assessing compliance risks and developing contingency plans, like:
- Diversifying revenue sources to reduce reliance on federal grants that could be frozen or revoked.
- Maintaining detailed records to demonstrate compliance with federal laws and ensure programs serve all eligible participants equitably.
- Regularly reviewing record retention and confidentiality policies to align with shifting federal oversight.
Other DEI-Related Federal Actions
Trump’s executive orders also direct federal agencies to investigate and address DEI practices. Here are some examples of this in action:
- The Equal Employment Opportunity Commission (EEOC) has launched investigations into large law firms suspected of violating existing anti-discrimination laws. Firms have been asked to provide details on their hiring practices, as well as internships, scholarships, and fellowships designed for law students from underrepresented backgrounds.
- The Department of Education is actively investigating potential unlawful DEI-related practices at major universities across the country.
- The Office for Civil Rights (OCR) under the Department of Education released a new FAQs on Racial Preferences and Stereotypes Under Title VI, offering insight into how federal officials may interpret Title VI, which prohibits discrimination based on race, color, or national origin in federally funded programs.
- The U.S. Department of Transportation (USDOT) has imposed additional scrutiny on new grants related to equity, as well as other initiatives like climate change, environmental justice, green infrastructure, bicycle infrastructure, and electric vehicle initiatives.
We encourage organizations to closely follow these developments, as federal actions against large institutions set precedents that shape the broader enforcement landscape, helping smaller organizations anticipate risks and understand how the government may interpret and enforce anti-discrimination laws in the future or execute their changing policy goals.