President-elect Donald Trump’s upcoming administration is poised to launch a significant challenge to diversity, equity, and inclusion (DEI) initiatives within corporations and universities. This aggressive stance, signaling a dramatic shift from the Biden administration’s policies, promises to embroil the nation in widespread legal battles and potentially unravel years of progress toward racial and gender equity.
The incoming administration intends to leverage the power of the Justice Department and other federal agencies to initiate investigations and lawsuits targeting DEI programs. The core argument is that many of these programs violate existing anti-discrimination laws. Mike Davis, founder of the Article III Project, a conservative advocacy group advising Trump, bluntly asserts, “DEI is unlawful discrimination. It’s illegal for the government to do it. It’s illegal for universities to do it. And it’s illegal for companies to do it.” This represents a stark reversal of the Justice Department’s traditional role, which, since its creation in 1957, has been to enforce laws aimed at combating discrimination against marginalized communities. Instead, under Trump, the department’s Civil Rights Division – now potentially headed by lawyer Harmeet Dhillon, a choice Trump lauded for her record of “suing corporations who use woke policies to discriminate against their workers” – may actively work against policies designed to benefit those same communities.
The administration’s legal strategy will likely center on Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination in federally funded programs. This could provide a legal basis to challenge university admissions practices and racial equity programs across various sectors, including healthcare. As Danielle Conley, head of the anti-discrimination practice at Latham & Watkins, explains, “The argument is going to be to the extent that there’s a consideration of race in any context by any entity that receives federal funds, that’s a problem under Title VI.”
Trump’s campaign rhetoric further solidifies this commitment. A July campaign video showcased his pledge to direct the Justice Department to investigate universities, accusing them of being controlled by the “radical left,” and vowing to eradicate what he termed “anti-American insanity” from these institutions. The Trump transition team has yet to respond to requests for comment on these plans.
Legal challenges are expected to include arguments that universities are not complying with the Supreme Court’s 2023 ruling against considering race in college admissions. Furthermore, Trump could reverse the Biden administration’s stance on the military academies’ affirmative action exemption. The previous Trump administration’s lawsuit against Yale University, accusing it of discriminatory admissions practices against Asian American and white applicants (later dropped under Biden), serves as a precedent for this aggressive approach. Even without direct enforcement authority, the government could still intervene in existing lawsuits, reinforcing its interpretation of civil rights laws and supporting those challenging DEI policies.
Conservative groups like America First Legal, founded by Trump advisor Stephen Miller, have already filed 15 lawsuits since 2022, targeting major corporations such as Meta and Amazon over their diversity initiatives. While several of these cases have been dismissed for lack of demonstrable harm to the plaintiffs, appeals are underway, illustrating the broader strategic effort to pressure companies to abandon DEI programs. The irony is not lost on critics; many of these lawsuits, filed on behalf of white men, utilize laws originally designed to protect Black Americans during the Reconstruction era and the Civil Rights Movement of the 1950s and 60s. Professor Thomas Healy of Seton Hall University Law School rightly points out that turning the Civil Rights Division into a force primarily protecting “the interests of white men” would represent a betrayal of its core mission.
Opponents of DEI policies contend that federal anti-discrimination laws are race-neutral and should apply equally to all forms of exclusion. However, civil rights advocates express deep concern that the mere threat of government scrutiny will compel companies to abandon their diversity commitments. Amalea Smirniotopoulos of the NAACP Legal Defense Fund highlights the risk that “employers may be worried about getting sued and roll back their programs,” emphasizing that these attacks are fundamentally an attempt “to hoard opportunity for a limited group of people.” Recent examples include Walmart, JPMorgan Chase, and Starbucks, all of which have scaled back DEI initiatives.
Public opinion is divided, with roughly half of Americans believing that greater governmental action is needed to address systemic racism, according to a Reuters/Ipsos poll. Nevertheless, legal experts suggest that DEI policies focused on race-neutral measures, such as broader recruitment efforts and aspirational diversity goals, may be more likely to withstand legal challenges. Debo Adegbile, head of the anti-discrimination practice at WilmerHale, aptly notes, “It is not pre-ordained what the outcome of the various challenges will be.”
The Justice Department’s ability to combat DEI policies will face limitations. The Civil Rights Division doesn’t have the authority to sue private employers over hiring and contracting discrimination; that power rests solely with the Equal Employment Opportunity Commission (EEOC). With a Democratic majority projected in the EEOC until at least 2026, some of Trump’s plans might be thwarted. However, the Civil Rights Division retains the ability to pursue employment discrimination cases against state and local governments. The upcoming legal battles promise to be a significant test of the nation’s commitment to equity and the very definition of civil rights in the 21st century.
