Pres. Trump issued an executive Order which forbids “illegal DEI.” Executive orders only have binding, legal effect for the Executive branch of the U.S. government. But, EO’s often have general influence throughout American society. What is or what might be “illegal DEI”? That phrase likely stems from the U.S. Supreme Court’s decision in Students for Fair Admission v. Harvard College, 600 U.S. 181 (2023). In that decision, the Supremes found affirmative action policies at universities to violate the Equal Protection clause of the 14th Amendment to the U.S. Constitution. The Equal Protection clause forbids discrimination based on race or ethnic origin in matters of contract. Matters of contract include anything regarding written agreements such as school admissions, employment, etc.

Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment. Title VII applies to race and national origin, and also to religion, age, gender, and disability. The SFA decision followed the decision in Grutter v. Bollinger, 539 U.S. 306 (2003), by just 20 years. The Grutter decision specifically approved of racial preferences, so long as they had some time limit. That is, racial preferences could not last forever. And, cautioned Grutter, racial preferences could never become racial quotas. The Grutter decision spoke approvingly of the benefits for a racially diverse student body. The SFA decision discussed Grutter, but did not overrule it. It is still good law.

Racial Preferences

So, if SFA did not deviate from approval of racial preferences, what did it do? The SFA decision said the racial preferences used by Harvard and University North Carolina were too attenuated from its stated goal of training future leaders in society. There must be a tighter connection between racial preferences and the goals of those preferences. In layman’s language, that means if you use racial preferences, you need to have a very good and clear reason.

So, now we have a new administration that is determined to rid the world of Diversity Equity and Inclusion. DEI was the answer, sort of, to affirmative action deficiencies. Title VII still exists. The Equal Protection clause has not changed. Title VII expressly forbids hiring based on race and the other protected categories. A person cannot hire a white person based on the color of his skin, just as an employer cannot hire a black person based on the color of his skin.

DEI

DEI can be anything an employer wishes it to be. But, if DEI means hiring criteria, then that would violate Title VII. In the interests of helping disadvantaged communities, some companies have established internships, mentor programs and fellowships that expressly favor minorities. Programs such as those might violate Title VII. They very likely would violate Pres. Trump’s EO.

As Justice Thomas noted in a concurrence to SFA, merely “helping” disadvantaged minorities inevitably harms the majority population. Justice Thomas also believes that Grutter is effectively overruled by the SFA decision. Justice Gorsuch also notes that allowing preferences or a “plus” inherently means treating a minority person differently than other populations. So, concludes Gorsuch, that amounts to discrimination.

One Concurrence by One Justice

So, if Grutter is overruled, no one explicitly says so. A concurrence by one judge is not law. A “plus” for race or some other category is still lawful. But, the new EO still says what it says. Some experts say that any program that is exclusive is what the administration would say is illegal. As one such expert, Craig E. Lee, partner at the law firm, K&L Gates, described the situation. So, internships, mentorships, and fellowships that are aimed at minorities are out. Edward Blum, one of the attorneys for the plaintiff in the SFA case has now been contacting large law firms to broaden their programs which had focused on minorities. He clearly believes some DEI programs are no longer lawful. New York Times, Feb 11, 2025.

But, DEI, as practiced by the Federal government does not include fellowships and internships. DEI, as practiced by the Federal government, is strictly outreach. They market employment opportunities to minority groups, such as historically black colleges. Does that sort of DEI also violate the new EO? Perhaps. Because sometimes, the law is not what the law actually is. But, what the new administration says it is. See the SFA decision here.