Trump’s DEI Crackdown Is a Bad Solution to a Real Problem
Throwing out the civil rights baby with the DEI bathwater?
AMONG THE AVALANCHE of executive orders that Donald Trump loosed upon his return to power are several related to high-profile culture-war issues. Foremost among these is a pair of executive orders relating to “diversity, equity, and inclusion” (DEI, sometimes known as DEIA for “diversity, equity, inclusion, and accessibility”). One bans DEI programs in the federal workforce and corporations with federal contracts. The other directs the government to investigate “DEI discrimination and preferences” across the private sector, including large academic institutions.
While the first order invokes the “bedrock” principle of equality of opportunity enshrined in the 1964 Civil Rights Act, it notably rescinds Executive Order 11246 signed by Lyndon B. Johnson in September 1965, which directed federal agencies and federal contractors to take “affirmative action” to enforce equal opportunity in employment. (That mandate was later expanded into regulations that required race- and sex-conscious “goals” in employment and contracting.) On Wednesday, in accordance with this order, employees in government DEI programs were placed on leave pending layoffs.
To some observers, this is a chilling move that strikes at the foundation of civil rights. Yet Trump’s DEI and affirmative action ban has received at least partially positive reviews not only from the MAGA right and the anti-woke commentariat but from liberal centrists like Matt Yglesias and Noah Smith (“an idea whose time has probably come”) and even some leftists who regard DEI as feelgood corporate flimflam.
These reactions reflect the fact that diversity programs in the workplace and on campus have come under intensive criticism in recent years, both for enforcing progressive groupthink and for substituting pseudo-progressive verbiage for meaningful change. The New York Times, which the Trumpian right regards as the Pravda of the Democratic left, reported a year ago that many companies were backing away from more controversial DEI initiatives such as mandatory anti-bias trainings that can turn into hectoring and struggle sessions. More recently, the Times also ran a long investigative article on the polarizing and demoralizing effects of an aggressive DEI initiative at the University of Michigan. And a Gallup poll in January 2024 found that more than two-third of Americans, including more than half of black Americans, approved of the Supreme Court ruling that banned affirmative action—i.e., the explicit consideration of race—in college admissions.
Academic, writer, and podcaster John McWhorter, a longtime critic of the progressive antiracism model who has also been scathingly critical of Trump, told me by email, “With reluctance, I find myself agreeing with Trump on this one, including the idea that imposing it on the government will set a model/mood for the rest of the country including private institutions to follow.”
While McWhorter once believed that race and gender preferences in the corporate world (though not in academia) had value as a way to offset traditional biases, he now thinks that in practice, DEI amounts to lowering standards and overfocusing on skin color: “It’s the way it comes out too often to be ignored.” He also thinks that “general awareness of the value of looking beyond white men has settled in over the past thirty years enough that we need not fear that the end of DEI programs will return us to Mad Men.”
Legal scholar Walter Olson, an occasional Bulwark contributor and a senior fellow at the libertarian Cato Institute (which has not stinted on harsh criticism of Trump’s early moves), also offered some cautious words of praise for Trump’s DEI executive order, including its emphasis on “product quality, price, and speed” in government contracting with no regard for the contractors’ identity. But Olson also sees potential problems:
Don’t expect laissez-faire; much of this scheme envisions keeping continued centralized power in the hands of the federal government, just applying it toward different goals than before. It heavily implies that private DEI efforts, whether or not related to government contracting, violate civil rights laws. . . . While advocates of liberty will applaud much of what is in this order, it will also be used to go after voluntary efforts by private companies, colleges, or professional groups that make distinctions by sex or other categories, even ones that I and others might find innocuous or praiseworthy.
For instance: Would a private corporation run afoul of the law if its leadership noticed that female or minority employees in certain jobs were more likely to quit and took steps to improve their retention? For that matter, the same question could apply to programs focusing on men: “Are efforts to keep men from dropping out of school teaching now going to be ruled improper sex discrimination?” asks Olson.
Another concern, always present with Trump (and his movement), is the danger of vindictive and bullying overreach. The administration has already announced a hunt for “efforts in government to disguise [DEI] programs by using coded or imprecise language.” A template email to that effect was sent out across government agencies warning employees that “failure to report [such efforts] within 10 days may result in adverse consequences.” Federal employees are instructed to snitch on colleagues and contractors if they catch a whiff of DEI.
The first anti-DEI executive order also directs agencies to assess “the number of new DEI hires” under the previous administration. Even the Foundation Against Intolerance and Racism, a civil liberties group critical of ‘wokeness’ which has expressed strong support for Trump’s “efforts to eliminate identity-based practices,” cautions that this demand “may invite speculation, without a firm basis or evidence, regarding an employee’s skills, abilities, or merit and instead make assumptions based on their perceived identity.” In other words, female and nonwhite staffers may be especially likely to be targeted as “DEI”—not an unlikely scenario when attacking women and minorities as “DEI” beneficiaries has already become a staple of right-wing rhetoric.
THE SNITCHING ISN’T CONFINED to the federal government. The second executive order also requires each federal agency to come up with a list of “up to nine” private entities that might be engaging in DEI practices that Trump now deems illegal. Corporations, nonprofit groups, charitable foundations, bar and medical associations, and universities with billion-dollar endowments—agencies are required to name some that can be subjected to “civil compliance investigations.”
It’s no surprise that anti-DEI crusader Christopher Rufo—who has made no secret of his eagerness to emulate Hungarian strongman Viktor Orbán in using government muscle to crush “wokeness”—has been gloating about the “nightmare” facing “woke” academia as the investigations begin. And it’s not hard to imagine, as some have suggested, that the old DEI bureaucracies will just be replaced by anti-DEI bureaucracies.
Of course, it remains to be seen how Trump’s DEI bans will be enforced and how they will hold up in the courts. For instance, some have pointed out that while affirmative action to combat race and sex discrimination has never been codified by Congress, Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 requires “the U.S. Securities and Exchange Commission (SEC) and other federal financial agencies to each establish an Office of Minority and Women Inclusion (OMWI) to be responsible for all matters relating to diversity in management, employment, and business activities.” This is a law, and so cannot be repealed by executive fiat; how it can coexist with Trump’s anti-DEI directive is unclear. (Notably, the pages related to Section 342 on the websites of the Treasury Department and the FDIC are now inaccessible.)
And there is another obvious question. Trump’s executive orders stress “the importance of individual merit” and non-discrimination, and it seems fairly certain, as Olson notes, that Trump’s Justice Department will assign the Civil Rights Division the task of pursuing claims of DEI-related bias (against whites and/or males, and in some cases Asians). But will the division—whose work has been frozen at the moment—still maintain a commitment to pursuing “traditional” complaints of discrimination against women or ethnic, racial, or religious minorities, especially if those complaints stem from being stereotyped as a “DEI pick”?
MANY CRITIQUES OF IDENTITY POLITICS have been valid and necessary. But DEI opponents should be wary of linking their cause to the Trump administration, which is all but certain to use colorblind fairness as a smokescreen for anti-woke identity politics—and which has started its first week with a spree of presidential lawlessness. If wise government policy can move the cultural needle, bad policy can move that needle in the other direction. McWhorter, too, noted this problem in our email exchange:
I think “enlightened” people have come to see that DEI doesn’t just mean outreach and learning how to look past white faces, but essentially institutionalized, thinly defended antiwhiteness. But Trump’s actions here will make that harder for them to admit to. The man is a scourge this way.