Policies and programs promoting diversity, equity and inclusion or diversity, equity, inclusion and accessibility (for convenience referred to as “DEI,” although proponents encourage the use of the words themselves wherever possible) have been a mainstay of American life in both the public and private sectors for several decades. They have been defended as an effective means to combat the legacies of slavery, Jim Crow laws, segregation, as well as discrimination on the basis of race, gender, religion, ethnicity and other forms of bigotry. Recently some conservatives have argued that the United States has achieved a colorblind society, and thus DEI policies and programs are unnecessary. In fact, they argue that such policies constitute discrimination against the white majority in the United States.
The conservative position has been fully embraced by President Donald Trump. Within hours of launching his second term on Jan. 20, 2025, Trump issued Executive Order 14151, entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing.” Trump ordered the director of the Office of Management and Budget, assisted by the attorney general and the director of the Office of Personnel Management, to coordinate “the termination of all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”
On his second day in office, Trump issued Executive Order 14173, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” declaring that “critical and influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) or ‘diversity, equity, inclusion, and accessibility’ (DEIA) that can violate the civil-rights laws of this Nation.”
Federal agencies flag 'DEI' words to limit or avoid
As The New York Times reports, federal agencies, borrowing from George Orwell’s “Nineteen Eighty-Four,” began implementing Trump’s executive orders by flagging “hundreds of words to limit or avoid, according to a compilation of government documents.”
These words include: accessible, activism, advocacy, affirming care, anti-racism, assigned at birth, bias, biologically female or male, BIPOC, Black, breastfeed + people, climate crisis, cultural differences, disabilities, diverse backgrounds, enhancing DEI, environmental quality, equal opportunity, equity, female gender based violence, Gulf of Mexico, hate speech, immigrants, indigenous community, inequality, injustice, LGBTQ, minorities, Native American, non-binary, oppression, people + uterus, prejudice, race and ethnicity, racial justice, segregation, social justice, they/them, transgender, tribal, victim, and women (but not men).
Government removes images, books highlighting race
Arlington National Cemetery has begun wiping histories from its website which previously highlighted Black, Hispanic and women veterans.
And to comply with Trump's executive orders, the U.S. Naval Academy's Nimitiz library has removed 381 books, including “Memorializing the Holocaust,” Janet Jacobs’s examination of depictions of women in the Holocaust; “How to Be Anti-Racist” by Ibram X. Kendi; “The Making of Black Lives Matter,” by Christopher J. Lebron; “How Racism Takes Place,” by George Lipsitz; “The Fire This Time,” edited by Jesmyn Ward; “The Myth of Equality,” by Ken Wytsma; studies of the Ku Klux Klan, and the history of lynching in America. The list also includes books about gender and sexuality, like “Bodies in Doubt: An American History of Intersex” by Elizabeth Reis, and “Between XX and XY: Intersexuality and the Myth of Two Sexes” by Gerald N. Callahan.
District judge: Orders are unconstitutionally vague, ‘prior restraint’
One of the most important lawsuits challenging the two executive orders was filed by the Baltimore mayor and city council, the American Association of University Professors and the National Association of Diversity Officers in Higher Education.
On Feb. 21, 2015, U.S. District Judge Adam B. Abelson in Maryland issued a 63-page decision granting a nationwide preliminary injunction preventing the Trump administration from implementing key components of the executive orders. Judge Abelson held that the challenged provisions were unconstitutionally vague, represented improper "prior restraints" on speech, and violated the First Amendment. He expressed serious concerns about the “arbitrary and discriminatory enforcement” of the executive orders resulting in irreparable harm. “The possibilities are almost endless, and many are pernicious,” Judge Abelson wrote, providing some examples:
If an elementary school receives Department of Education funding for technology access, and a teacher uses a computer to teach the history of Jim Crow laws, does that risk the grant being deemed 'equity-related' and the school being stripped of funding? If a road construction grant is used to fill potholes in a low-income neighborhood instead of a wealthy neighborhood, does that render it 'equity-related'? If a university grant helps fund the salary of a staff person who then helps teach college students about sexual harassment and the language of consent, would the funding for that person’s salary be stripped as 'equity-related'? If a business with a grant from the Small Business Administration conducts a recruiting session at a historically Black college or university, could the business be stripped of the grant on that basis?
Judge: Sanctions against disfavored speech violate constitution
Citing a 1972 Supreme Court decision, Judge Abelson held that "Vague laws may trap the innocent by not providing fair warning... We insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” In 2015 the Supreme Court held that the government cannot censor messages, ideas, or subject matter simply because it disagrees with them. Judge Abelson found that key portions of the two executive orders constituted “blatant” and “egregious” examples of content discrimination, which clearly violate the First Amendment.
Judge Abelson noted that a White House fact sheet claims that “radical DEI has dangerously tainted many of our critical businesses and influential institutions;" that “many corporations use DEI ... ignoring the fact that DEI’s foundational rhetoric and ideas foster intergroup hostility and authoritarianism;” and that “DEI creates and then amplifies prejudicial hostility and exacerbates interpersonal conflict.”
Judge Abelson then held that "as the Supreme Court has made clear time and time again, the government cannot rely on the 'threat of invoking legal sanctions and other means of coercion' to suppress disfavored speech," citing a unanimous Supreme Court decision issued just last year. He ruled that although the government may “cho[ose] to fund one activity to the exclusion of another” and may “define the limits of the government spending program,” it may not punish government contractors or grantees “because of their speech on matters of public concern.”
4th Circuit panel allows Trump DEI orders to continue for now
However, on March 14, 2025, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously granted the Trump administration’s request to stay Judge Abelson’s preliminary injunction, pending a full-dress review of the case. Two of the three judges indicated that they may eventually strike down key portions of the two executive orders as violations of the First and 14th amendments.
Chief Judge Albert Diaz expressly reserved judgment “on how the administration enforces these executive orders, which may well implicate cognizable First and Fifth Amendment concerns.” He noted that Trump’s executive orders treat DEI like “a monster in America’s closet,” which Trump called “dangerous, demeaning, and immoral.” Judge Diaz wrote that despite “the vitriol now being heaped on DEI, people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium. For when this country embraces true DEI, it acknowledges and respects the social identity of its people. When it fosters true equity, it opens opportunities and ensures a level playing field for all. And when its policies are truly inclusive, it creates an environment and culture where everyone is respected and valued. What could be more American than that?”
He added that “under the most basic tenets of the First Amendment, there should be room for open discussion and principled debate about DEI programs, and whether its corresponding values should guide admissions, hiring, scholarship, funding, or workplace and educational practices. And all Americans should be able to freely consider how to continue empowering historically disadvantaged groups, while not ‘[r]educ[ing]’ the individuals within those groups ‘to an assigned racial [or sex-based] identity.’”
Circuit Judge Pamela Harris, another member of the three-judge appellate panel, explained that “What the Orders say on their face and how they are enforced are two different things. Agency enforcement actions that go beyond the Orders’ narrow scope may well raise serious First Amendment and Due Process concerns, for the reasons cogently explained by the district court.” Her vote “should not be understood as agreement with the [Executive] Orders’ attack on efforts to promote diversity, equity, and inclusion. In my view, like Chief Judge Diaz’s, ‘people of good faith who work to promote diversity, equity, and inclusion deserve praise, not opprobrium.’”
Disputes increase over whether DEI orders violate First Amendment
Disputes over whether the executive orders “as applied” violate the First Amendment are fast emerging. On Feb. 25, 2025, the American Federation of Teachers (AFT), the American Sociological Association, and the American Federation of Teachers Maryland filed a comprehensive 37-page complaint in federal court in Baltimore, vigorously defending DEI as a legal and constitutional means of assuring that education remain “the very foundation of good citizenship.”
Their lawsuit focuses on a “Dear Colleague Letter” issued by Trump’s Department of Education on Feb. 14, 2025, to all colleges, universities, and other educational institutions warning them to disband “DEI” programs or face “potential loss of federal funding.”
The letter claimed that American educational institutions have embraced “pervasive and repugnant race-based preferences and other forms of racial discrimination” that “have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices.” Under the banner of DEI, these programs have been “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.”
In the lawsuit the teachers union and association asserted that the Trump administration was vastly overstating the legal effect of the Supreme Court’s 2023 decisions about affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina that held that the practice of using an applicant’s racial identity as a formal criterion during the undergraduate admissions process was a violation of the 14th Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964.
The Court left untouched the law on race-neutral programs, and it did not change the law “in any other area of civil rights with respect to education” or “efforts to recruit students and employees of all races and backgrounds (as well as, income levels, geographic, rural/urban communities, family composition, first generation students or other forms of DEI) or any other characteristic the Department of Education may associate with particular races or ethnicities.”
Lawsuit: Federal laws don’t prohibit race-related topics in education
The lawsuit also points out that neither the First Amendment nor any federal law prevents teaching about race and race-related topics. In fact, federal law specifically provides that the Department of Education may not “mandate, direct, or control” the “academic standards and assessments, curricula, or program of instruction” that states, localities, and schools use to implement requirements under federal education law.”
The lawsuit also argues that the letter appears to ban any discussion of so-called “race-conscious” topics, including slavery, the Emancipation Proclamation, the creation of Native American reservations and forced relocation of tribes, xenophobic responses to waves of immigration (Irish, Southern European, Eastern European, and Asian), and the Civil Rights movement, all of which are required teaching by state or local education standards.
The lawsuit describes a few examples of perfectly appropriate educational activities that the Office of Civil Rights might consider a violation of the letter:
Teaching a college course on the history of the U.S. South and Jim Crow, urban policy and planning, modern American history, or the history of housing and segregation; leading a class discussion on the history of slavery in America or Japanese internment during World War II; maintaining Departments of African American Studies, Arab American Studies, Asian American Studies, or Jewish Studies; hosting a celebration for Black History Month, Holi, Eid, or Lunar New Year; hosting a Latin American culture club or a Japanese film club; counseling a student who was called a racial or ethnic slur and is upset about that experience; maintaining a school mission built around advancing excellence and equity; telling students they cannot use a racial slur and explaining why other students might find the slur hurtful; contracting with a non-profit organization dedicated to improving educational outcomes for first-generation students or students of color; displaying pictures of notable African Americans during Black History Month; or sponsoring a tutoring program designed to help low-income students excel, if a disproportionate number of such students are people of color.
The teachers union and association asserts that “classroom lessons that accurately reflect our nation’s history and values not only promote equality, but lead to increased educational opportunity for all students.” Teaching topics like history, sociology and literature “without excluding key issues because they somehow reference race or ethnicity is a benefit to students, not a harm.” The freedom to explore and examine new ideas “is a critical part of education,” and attempts to diminish those freedoms “through misinformation, selective teaching, or censorship is a disservice to students.”
Some states refuse to end DEI programs
In addition to lawsuits challenging the executive orders, some state officials are flatly refusing to end their DEI programs.
On April 11, 2015, Daniel Morton-Bentley, counsel and deputy commissioner of the New York Department of Education, said in a letter to the federal Department of Education that New York state officials do not believe the federal agency has authority to make such demands.
“We understand that the current administration seeks to censor anything it deems ‘diversity, equity & inclusion,’” he wrote. “But there are no federal or State laws prohibiting the principles of DEI.”
Morton-Bentley also wrote that state officials were “unaware” of any authority the federal Department of Education has to demand that states agree with its interpretation of court decisions or to terminate funding without a formal administrative process. He added that the state education department has already certified to the federal government on multiple occasions that it is complying with Title VI of the Civil Rights Act of 1964, most recently in January, 2025. He said the federal department is basing its demands to end DEI programs on a faulty legal interpretation
Georgetown law school threatened with demand letter over DEI
Meanwhile, on Feb. 17, 2025, Edward R. Martin, Jr., whom Trump chose as the new U.S. Attorney for the District of Columbia, sent a demand letter to Georgetown School of Law, stating that it had come to his attention that the law school “continues to teach and promote DEI,” which he declared “unacceptable.” Martin said he had “begun an inquiry” and wanted answers to two questions: “First, have you eliminated all DEI from your school and its curriculum?” and “Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it?” Martin didn’t stop there. He threatened that “no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with the law school or university that continues to teach and utilize DEI will be considered.”
The response from William M. Treanor, Georgetown’s dean and executive vice president, represented a strong defense of academic freedom: “As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding.” Treanor reminded Martin that the First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it,” noting that “the Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.”
Referring to Martin’s threat to deny Georgetown students and graduates employment opportunities unless the government approves the curriculum, Treanor responded that given “the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.”
Conservatives see the Trump presidency as an ideal opportunity to limit or even eliminate policies and programs that promote DEI. They argue that these policies and programs constitute reverse discrimination in violation of the 14th Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Supporters of DEI believe such policies and programs are fully justified by the very same principles underlying the 14th Amendment and the panoply of federal and state civil rights laws. First Amendment advocates assert that the teaching of comprehensive American history – the good, the bad and the ugly – cannot be stifled by government mandates, such as Trump’s executive orderss.
Given the sharp political divisions in modern America, legal battles over whether policies and programs promoting diversity, equity, inclusion and accessibility are protected by — or violate — the First Amendment are sure to occupy the courts for years to come.
Stephen Rohde is a retired constitutional lawyer, lecturer, writer and political activist.