For Trump DOJ, DEI Is The New Jim Crow. Businesses Should Take Note.

November 1939: The Rex Theatre in Leland, Mississippi, which is segregated under the Jim Crow laws. (Photo by Marion Post Wolcott/Library Of Congress/Getty Images)

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On January 21, President Donald Trump signed an executive order taking aim at diversity, equity, and inclusion practices within government agencies. It also directed government agencies to to “enforce our longstanding civil-rights laws and to combat private sector DEI.” To avoid penalties, DEI advocates are rebranding and looking for loopholes. However, the Department of Justice’s isn’t buying the changes, drawing parallels between DEI rebranding and Jim Crow laws that attempted to undermine the civil rights movement. Businesses that buy into the rebrand theory may find themselves in the legal crosshairs.

The concept of workplace diversity has existed in the U.S. for decades. Over time, the label changed and the definition broadened to include more groups. Around 2015, language shifted to the term DEI. With the new label came a new focus, away from equality and towards equity. DEI programs became part of a broader environmental, social, and governance movement within the business community.

As ESG spiked during the Biden area, so did DEI. Companies released sustainability reports and ESG reports touting DEI alongside climate change actions. Then came the political backlash. First aimed at Bud Light for their Dylan Mulvaney marketing campaign. Following that success, Republicans set their sights on “woke” culture, moving from business to business forcing reforms. Following the 2024 presidential election, companies began abandoning DEI and ESG completely.

While DEI advocates will blame the Trump administration, the legal fall of DEI began in the June 2023 Supreme Court opinion Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The Court addressed two cases relating to college admissions; one against Harvard College and the other against the University of North Carolina. Because both cases addressed the same issue, the use of race in college admissions, the Court combined them into a single opinion. The cases were decided 6-2 and 6-3 respectively, as Justice Ketanji Brown-Jackson recused herself from the Harvard case due to a conflict.

The Court concluded the use of race in college admissions is a violation of the 14th Amendment’s Equal Protection Clause. The Court did not change the precedent of Grutter v. Bollinger, the previous case that upheld affirmative action in college admission; rather it determined Grutter had run its course and considering race in college admissions was no longer necessary or allowed. Affirmative action came to an end.

As I noted at the time, while the affirmative action opinion is limited to government actions, specifically in higher education admission practices, it will have impacts on DEI. Principles expressed in one opinion are routinely quoted and applied to similar situations. As both are governed under the Civil Rights Act of 1964, with college admissions under Title VI and employers under Title VII, it was not unreasonable for legal challenges to apply this ruling to DEI.

The Trump administration immediately set to work purging DEI from government agencies and private business. On January 21, Trump signed Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”.

The order stated, “it is the policy of the United States to protect the civil rights of all Americans and to promote individual initiative, excellence, and hard work. I therefore order all executive departments and agencies to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”

For that enforcement, Harmeet Dhillon, the Assistant Attorney General for the Civil Rights Division, is leading the charge in the DOJ.

On July 23, Dhillon spoke before the Senate Judiciary Subcommittee on the Constitution’s hearing on Ending Illegal DEI Discrimination & Preferences: Enforcing Our Civil Rights Laws. She noted that enforcement of Trump’s executive order has been delegated to her, reporting that she has “been busy implementing President Trump’s bold agenda for ending DEI in all forms alongside the dedicated attorneys in the Civil Rights Division.”

Her testimony highlighted efforts by the division to prosecute and end DEI initiatives. Looking at employment related matters, she cited an investigation into the state of Minnesota for violation of Title VII relating to the states hiring and employment practices. Similar investigations were launched against Minneapolis Public Schools, the Rhode Island Department of Education, and the City of Chicago. She also listed various actions against universities and colleges. She closed by saying “with these efforts
underway, the choice is clear: either DEI will die itself, or we will kill it.”

While her testimony focused on public entities, the Civil Rights Division is also looking at government contractors. On May 19, the DOJ established the Civil Rights Fraud Initiate to prosecute recipients of federal funds that engage in DEI. The joint program combines the efforts of the Civil Division’s Fraud Section and the Civil Rights Division to target government contractors and institutions under the False Claims Act.

In the memorandum, Deputy Attorney General Todd Blanche repeatedly identified DEI policies as “racist.” He also provided the following quote from the affirmative action case: “eliminating racial discrimination means eliminating all of it.” Students for Fair Admissions has squarely entered into the DEI debate.

For now, it appears the Civil Rights Division is primarily focused on government entities and government contractors. They are low hanging fruit. It is only a matter of time before focus is shifted to include the private sector, as ordered by Trump.

DEI advocates are not going without a fight. Resources are available for businesses looking to usurp restrictions. In a recent LinkedIn post from a DEI advocate, who I will not name, she stated the work around for “women only” training is to rebrand them for “women and allies.” While she thought this was a clever workaround, the attorney in me immediately saw this as bad advice.

The attorneys working for Trump’s DOJ are already looking for entities that are trying to hide their DEI programs. Dhillon has made it no secret she is looking for violations and creative workarounds. Her official account on X frequently retweets claims by conservatives relating to attempts by local governments, universities, and public institutions, like the Smithsonian, to rebrand DEI.

However, the most relevant retweet drawing parallels came from a response to Congressman Bobby Scott, accusing him of being “George Wallace standing in the door of Foster Auditorium.” A reference to the democrat governor’s attempts to block the entrance of the first black students at the University of Alabama in 1963. Dhillon added her own comment. “This is the kind of denialism southern Dixiecrats were infamous for during desegregation. It’s no less repugnant today.” The disagreement came over the “inclusive” actions of the Virginia school system in their transgender policies.

While advocates of DEI will view it as a false comparative, arguing that DEI is not discrimination, conservatives will disagree. For Republicans, the inclusion or exclusion of someone based on race or gender is discriminatory and violation of civil rights. It is easy for them to argue that attempting to creatively work around DEI restrictions hearkens to Jim Crow laws designed to undermine civil rights.

The U.S. has a dark history with efforts to discriminate and segregate based on race. From the 1880s to the 1960s, segregation was legal. In the 1883 “Civil Rights Cases”, the Supreme Court allowed for segregation by businesses, namely hotels. In 1896 Supreme Court Case, Plessy v. Ferguson, states and local governments were able to segregate in public facilities, including schools. Movie theaters, water fountains, bathrooms, public transportation, hotels, and restaurants were divided by race. These regulations were enforced through what is known as “Jim Crow” laws.

Legal progress in civil rights was met with creative workarounds. During that era, states frequently enacted legislation attempting to usurp requirements. Notably, literacy tests where black citizens were required to pass a test to register to vote, while whites were “grandfathered” in. To conservatives that believe DEI policies are racist, avoiding enforcement is the modern day literacy test. They believe they are in the moral high ground in the debate and will use their resources to prevent discrimination. The Supreme Court may agree.

For businesses, DEI is primarily being examined through the risk to the bottom line. Advocates, especially those whose livelihood is tied to DEI, will continue to push for its survival. They will point to Target’s recent struggles relating to changes in their DEI policy and argue that abandoning DEI is foolish. However, the legal risk of DEI programs is increasing daily. Trump’s DOJ is on the hunt. Someone will be made the example.