Eliminating illiberal and unconstitutional racial preferences will be a yearslong effort, conservative civil-rights lawyers told NR.
As president elect, Donald Trump has already begun discussing his plans to weed out “Marxist diversity, equity, and inclusion bureaucrats” from the nation’s universities and to take aim at schools that continue to discriminate by race “under the guise of equity.”
But dismantling the federal government’s massive DEI bureaucracy, which has ballooned under the direction of President Joe Biden, and rooting out illiberal and unconstitutional racial preferences the Left has deeply embedded into the government and into law will be a yearslong effort, conservative civil-rights lawyers and activists told National Review.
“This is not a short-term project,” said Dan Morenoff, executive director of the American Civil Rights Project, which specializes in fighting identity-based discrimination.
Undoing the Biden administration’s “Equity Agenda” will take not only executive orders from Trump, but also congressional action, efforts by Trump-appointed agency heads, notice-and-comment rulemaking, and likely continued lawsuits from civil-rights groups.
“The president has some real power to get this ball rolling and to dictate where the ball is going, but there are things that are going to take some additional steps,” Morenoff said.
Taking office in the wake of George Floyd’s killing in Minneapolis and the racial-justice riots that engulfed many American cities, Biden — who owed his presidency to support from the black community — made so-called equity an immediate priority.
On his first day in office, Biden signed Executive Order 13985, or Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, in part to combat the “systemic racism” he claimed still plagues the nation’s institutions. But even as his administration lost repeatedly in the courts and voters soured on the concept, Biden doubled down with additional orders and a whole-of-government approach to DEI, preferences for select minority groups, and identity politics.
Biden commanded the heads of federal departments and agencies to establish Equity Teams, which were directed to submit annual Equity Action plans to the White House.
A report last month from Do No Harm, a medical watchdog, identified over 500 active or planned DEI actions by federal agencies. A new report from Open the Books, a government transparency group, found that the Department of Health and Human Services alone has about 300 staffers dedicated to diversity at an annual cost of $38.7 million.
Under Biden, aid to small businesses and farmers, contracts, scholarships for students, homeless services, and community-development funds for local governments were all provided with an eye on benefiting certain, often arbitrarily defined, minority groups.
The Wisconsin Institute for Law & Liberty (WILL), a conservative law firm that has successfully fought the Biden administration’s discriminatory programs in court, has counted more than 60 programs written into the U.S. Code that continue to provide grants, rebates, set-asides, preferences, waivers, price caps, and discounts based on racial preferences.
Dan Lennington, a WILL lawyer, said Biden’s plan was to “re-orient the entire federal bureaucracy towards eliminating all racial disparities. And what that meant was that in every area — assistance to farmers, to small businesses, in health care, all facets of American life — Biden directed the federal bureaucracy to treat racial groups differently, to give a benefit to some and not a benefit to others.”
In addition to signing executive orders, Biden was “tremendously successful” at signing racial preferences into law through the American Rescue Plan Act, the Bipartisan Infrastructure Bill, and the Inflation Reduction Act, Lennington said. Some of those set-asides have been blocked by the courts, including a loan-forgiveness program for black farmers, but many others remain.
“The new administration is going to have to decide what to do with all of those existing federal programs, many of which were actually passed . . . with bipartisan support,” Lennington said.
Both Morenoff and Lennington expect Trump to issue an executive order on Day One directing federal departments and agencies to end most current practices that involve treating people differently based on their race. He may also reinstate the executive order he passed near the end of his first term banning the federal government and its contractors from employing DEI training programs, which he previously described as “offensive and anti-American race and sex stereotyping and scapegoating.”
“There are four areas that the Trump Administration should focus on in order to end the pervasive race-based programs and policies in our public policies: higher education, employment, contracting and disparate impact,” conservative activist Edward Blum said in an email to National Review. Blum’s Students for Fair Admissions lawsuits ended with the Supreme Court overturning affirmative action in college admissions.
Another signal that Trump is serious about taking on the DEI bureaucracy: his announcement that former adviser Stephen Miller will return as deputy chief of staff. During the Biden administration, Miller led the America First Legal Foundation in part to challenge illegal and discriminatory DEI projects and employment programs.
After his election this month, Trump spoke about his plan to “reclaim” American colleges and universities “from the radical left,” “Marxist maniacs and lunatics,” and DEI bureaucrats. He said he intends to “fire the radical left accreditors” who’ve allowed DEI to take root in the nation’s institutions of higher education.
He also said he would “direct the Department of Justice to pursue federal civil-rights cases against schools that continue to engage in racial discrimination and schools that persist in explicit unlawful discrimination under the guise of equity,” vowing to also tax their endowments and to impose massive fines.
At Columbia University in New York, a group of alumni and former professors warned in a new report that the university could lose up to $3.5 billion a year, or more than half of its operating budget, if the new Trump administration finds that it is violating the Civil Rights Act by discriminating by race, color, or national origin, a report in the Free Press said.
To get at deeply rooted DEI programs, Trump will have a variety of tools at his disposal.
Although Republicans appear poised to control both houses of Congress, their majorities will be slim and Democrats will likely be able to use the Senate filibuster to block substantive changes, Morenoff said.
However, he added, “there are a lot of things that Congress can do through its funding decisions. And those can go through a reconciliation package, and that reconciliation package is not filibusterable.”
“So, are there 50 votes to say, block all funding for all of the equity plans? There might very well be. I would hope that there are,” Morenoff said.
Lennington offered other routes the Trump administration could use to root out DEI. One option, he said, would be for the DOJ to review existing programs and to issue opinions based on current Supreme Court precedent. Trump could then use those opinions to direct federal agencies not to implement the programs “even though they are passed by Congress, because everybody took an oath of office to abide by the Constitution.”
Trump could also rely on the complaint process to block DEI measures, Lennington said.
The new Trump administration could also use a “sue and settle” strategy to end DEI programs that are likely unconstitutional, Lennington said. The strategy would rely on groups like WILL and the American Civil Rights Project to sue the federal government, and for the Trump administration to settle with them and to then issue consent decrees.
For example, Lennington said, WILL is currently challenging the Disadvantaged Business Enterprise program, which sets aside hundreds of millions of dollars in road construction contracts for small businesses owned by women and some racial minorities.
“The new administration on January 20, could agree to a consent decree and settle the entire lawsuit and stop discriminating against road builders,” he said.
Lennington said it’s time to start dismantling the DEI bureaucracy “brick by brick.”
“The Supreme Court has said that our Constitution and our federal laws demand colorblind treatment of all U.S. citizens,” he said. “Anything that is not colorblind is going to go. It’s going to go the easy way or the hard way.”
Dr. Stanley Goldfarb, a professor of medicine and executive of the Do No Harm watchdog group, said he expects dismantling the DEI bureaucracy will be a Trump priority.
“This is something the public wants,” he said.
Goldfarb believes DEI, racial preferences, and affirmative action have had a negative impact on the culture, particularly in medicine, noting programs that use race as a factor to determine who will receive life-saving procedures and organ transplants.
Goldfarb also expressed concerns about efforts to lower criteria to increase the number of minorities in the medical field, saying it leads to diminished trust.
“You undermine trust and patient care starts to suffer,” he said.
A recent New York Times Magazine report found that DEI has harmed the culture at the University of Michigan, which became less inclusive after it fully embraced leftist diversity measures. National Review reported in 2022 that U-M’s powerful DEI bureaucracy created a culture of fear that divided the campus.
While Biden reversed Trump’s anti-DEI orders upon taking office and Trump appears poised to take an axe to Biden’s DEI agenda, Morenoff said there is reason to believe that DEI could avoid becoming a back-and-forth between Republican and Democratic administrations.
“There are battles that seem really intense, which define our politics for a generation, and then just disappear. They generally disappear primarily because the losing side concedes it’s a losing position,” he said, noting fights over the constitutionality of the New Deal that Republicans essentially gave up on under the Eisenhower administration.
When it comes to most racial preferences, “the answer to what the Constitution requires is actually remarkably clear” that they’re illegal, he said. “And not only is there a solid legal argument, it seems that the public is also solidly in one camp.”
Morenoff noted that some more-centrist Democrats like New York representative Ritchie Torres are blaming their losses this year in part on the party’s embrace of identity politics.
“The reason they’re saying it publicly,” Morenoff said, “is there are people on the left who realize they will not win again as long as this defines them.”