Trump strikes a huge blow against DEI

Anachronistic Executive Order issued by LBJ is among the victims

“Flooding the zone” is an inadequate description of Donald Trump’s blitz on the executive order front. “Shock and awe” is more like it.

This post is about one of Trump’s actions — his anti-DEI order. It’s called “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”

Ed Whelan describes this order as “excellent.” I agree.

In this post, I’ll summarize the provisions of the Order. Then, I will focus on one of its elements — the revocation of Executive Order 11246 which requires federal contractors to develop and implement affirmative action plans.

Section 1 of Trump’s Order is basically a long (but worthwhile) preamble. It denounces the adoption and active use by the federal government and a broad array of private employers of “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) that can violate the civil-rights laws of this Nation.” It states:

Illegal DEI. . .policies not only violate the text and spirit of our longstanding Federal civil-rights laws, they also undermine our national unity, as they deny, discredit, and undermine the traditional American values of hard work, excellence, and individual achievement in favor of an unlawful, corrosive, and pernicious identity-based spoils system. Hardworking Americans who deserve a shot at the American Dream should not be stigmatized, demeaned, or shut out of opportunities because of their race or sex.

These illegal DEI. . .policies also threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society, including all levels of government, and the medical, aviation, and law-enforcement communities.

In Section 2, Trump orders “all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.” In addition, he orders “all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

In Section 3, Trump revokes a series of Executive Orders that conflict with the principles of his Order. One such Order is EO 11246 — the focus of the second half of this post.

Section 4 “encourag[es]” the private sector to end illegal discrimination and directs the Attorney General to submit a report with a strategic enforcement plan to make this a reality.

Section 5 directs the Attorney General and the Secretary of Education to issue guidance to all schools that receive federal funds on “the measures and practices required to comply with” the Supreme Court’s decision (Students for Fair Admissions v. Harvard) barring racial preferences in admissions.

Let’s turn now to the revocation of Executive Order 11246 — a landmark decree and one of the cornerstones of the racial preference regime Trump wants to dismantle. It was issued by Lyndon Johnson in 1965, the year after he signed the Civil Rights Act of 1964. Title VII of that Act prohibits employment discrimination based on race (among other characteristics) and also contains anti-employment quota language.

EO 11246 directed the Labor Department to ensure that government contractors submit affirmative action plans. In these plans, they were required to include “goals and timetables” for increasing minority representation in their workforce and in various job classifications therein.

“Goals and timetables” were, in effect, soft quotas. Thus, as Dan Morenoff, executive director of the American Civil Rights Project, says affirmative action came to mean treating Americans of different races differently.

The tension between Title VII’s ban on racial discrimination and EO 11246’s version of affirmative action is obvious. At first, though, it was mostly theoretical.

In 1965, employment discrimination against blacks was rampant. Some employers wouldn’t hire blacks at all or, in the more common case, would hire them only into the lowest job categories. One liberal southern judge gave this phenomenon a name — “the inexorable zero.”

The 1964 Civil Rights Act banned race-based employment discrimination by all but the smallest employers. However, it did not provide the means effectively to enforce the ban. The EEOC was not given the power to bring suits until 1972. Piecemeal private suits, which offered only limited recovery, could not quickly overturn the status quo.

The soft quotas imposed in connection with EO 11246 did in some cases cause whites to be rejected in favor of less qualified blacks. But during the 1960s and 1970s (when I first got involved in this area of law), they did not, in practice, cause employers to impose the modern concept of “equity” — i.e., black representation equal to the proportion of blacks in the relevant population. Rather, they caused employers gradually to increase black representation.

Sixty years later, whatever pragmatic justification existed for EO 11246 has long since vanished. Blacks are not systematically excluded from workforces or from specific job categories. Whatever hiring and promotion discrimination still exists is, due to DEI and EO 11246, probably more likely to favor blacks than whites.

EEOC has been suing employers for decades. The scope of monetary relief available to private plaintiffs increased dramatically with the passage of the Civil Right Act of 1992.

EO 11246 is no longer a force for breaking down barriers to employment opportunities for minorities. It has become the instrument of what Trump’s EO eloquently calls “an unlawful, corrosive, and pernicious identity-based spoils system.”

President Trump should be commended for revoking it and for the well-conceived Order that aims to eliminate DEI, root and branch.