The Trump administration will need to address everything from agency hiring practices and internal trainings to grant funding decisions, legal experts and DEI opponents told the Daily Caller News Foundation.

Gail Heriot, law professor at the University of San Diego, told the DCNF that the Trump administration needs to begin by “withdrawing Biden’s executive orders embedding DEI in every nook and cranny of the executive branch of government.”

President Joe Biden’s day one executive order established a “whole-of-government equity agenda,” directing every agency to conduct an equity assessment. His June 2021 executive order on DEI in the federal workforce required agencies to implement training programs for employees informing them about systemic racism and implement DEI principles into hiring and promotion practices.

Trump can also reinstate his Sept. 2020 executive order, which was reversed by Biden, “combatting race and sex stereotyping.”

The ideas promoted through DEI trainings “may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars,” the order stated.

Another early target could be ending DEI employment policies within federal agencies. DEI opponents also argue Trump needs to cut programs and grants that doll out funds based on identity.

“First and foremost the Trump administration needs to use its power over federal agencies and programs to enforce existing rules against discrimination in funding, grants, and contracting,” William Jacobson, Cornell Law School professor and founder of the Equal Protection Project, told the DCNF. “Many of the DEI practices violate the anti-discrimination laws and rules already on the books.”

Some programs, such as those run by the Minority Business Development Agency (MBDA), have already encountered legal roadblocks as a result of lawsuits filed by conservative groups. A federal judge held in March that the MBDA’s mission to help minority-owned businesses access capital and government contracts was unconstitutional, writing it cannot vet applicants “based on race.”

A recent report released by Republican Texas Sen. Ted Cruz revealed more than ten percent of grant spending by the National Science Foundation (NSF) during the Biden-Harris administration went towards research projects that promote DEI.

https://twitter.com/amuse/status/1856120930348741019

Going On Offense

While rooting out internal DEI programs, the Trump administration could also target similar programs in education and corporate America.

“While the Trump administration considers the elimination or reorganization of the Department of Education, it should insist that DoE’s Office for Civil Rights act on complaints of DEI discrimination promptly and forcefully,” Jacobson said. “Our Equal Protection Project (EPP, EqualProtect.org) has filed approximately 50 OCR complaints against colleges and universities in the past 18 months, but OCR has been slow to act in many cases.”

Since the Supreme Court struck down affirmative action in higher education last year, the EPP has filed complaints against universities for tuition reduction programs, scholarships and fellowships that include race in their eligibility criteria.

The DOJ’s Office of Civil Rights should target “schools, employers, and nonprofit programs that give resources on the basis of race,” GianCarlo Canaparo, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the DCNF.

“Much good can be done by suing high-profile targets, but small targets should be sued too because there are more of them, and the signaling effect that ‘you’re not too small to escape anti-discrimination law’ will be powerful,” he said.

Under Biden, the OCR has sued police and fire departments over hiring standards it deemed discriminatory due to the outcome. Maryland’s police department agreed to an over $2 million settlement after females performed worse than men on the physical test and black applicants passed the written test at a lower rate than white applicants.

Congressional Action

The most lasting changes must be made by Congress.

“At some point in the future, Democrats are going to control all those agencies again, and if these tools are on the table, they’re going to use them,” Canaparo said.

Canaparo said Congress should repeal the law he argues helped create DEI: the 1991 Amendment to Title VII.

The amendment makes implementing policies that have a disparate impact on minorities illegal, even if the policy is neutral on its face.

https://twitter.com/RepCloudTX/status/1859293335414026377

Heriot argued Congress must remove incentives colleges and universities have to offer race-based preferences, such as stripping accreditors of their authority to dictate the racial composition of student bodies and ending federal programs that fund institutions with higher percentages of minorities.

Colleges have attempted to circumvent the Supreme Court’s affirmative action ruling by considering “adversity” scores or implementing admission essay questions about aspects of potential students’ “identity.”

In June, Vice President-elect J.D. Vance introduced the “Dismantle DEI Act of 2024” with Rep. Michael Cloud, which would eliminate all federal DEI programs and prohibit federal grant funding and contracts from promoting DEI. The legislation passed out of the House Oversight Committee on Thursday.

“If Trump is successful in his campaign to end woke discrimination, he’ll go down in history as one of the greatest presidents for the promise of racial neutrality in America,” Canaparo said.

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Americans “overwhelmingly rejected the ideological takeover of political and civic life by narrow-minded identity politics” in the Nov. 5 election, a coalition of 38 financial officers wrote in letters warning companies that the new administration will “hasten the demise of DEI.”

“You stand at an important crossroads,” the letter states. “Either you can heed the voice of the American people—your shareholders, customers, and employees—or you can bow to fringe activists who demand that you double down on a failing ideology.”

Companies scored on the Alliance Defending Freedom’s Viewpoint Diversity index, along with Fortune 1000 companies not scored, received letters from the investor advisor coalition.

ADF’s 2024 Viewpoint Diversity index revealed that 91 percent of companies scored use critical race theory in their training materials for employees. The index measured the 85 biggest technology and finance companies on their respect for free speech and religious freedom.

Jeremy Tedesco, senior vice president of corporate engagement for Alliance Defending Freedom, told the Daily Caller News Foundation it’s clear that diversity, equity and inclusion (DEI) is already “on its way out.”

“What the Trump administration does could really speed up that process, which will ultimately be good for those corporations, for their workforce, for the broader society, because DEI is a toxic ideology that harms everybody it comes into contact with,” he said.

Some companies have already changed DEI policies as a result of pressure from consumers and shareholders, ending their participation in the left-wing Human Rights Campaign’s Corporate Equality Index and abandoning diversity initiatives, Tedesco noted. Under pressure from conservative activist Robby Starbuck, companies like Lowe’s and Tractor Supply Co backtracked on DEI policies, including sponsoring LGBTQ pride parades.

Companies began rolling back their DEI programs after the Supreme Court ruled against affirmative action in higher education in 2023 and conservatives increased their focus on specifically targeting corporations with legal challenges.

“While we urge you to distance yourself from DEI and highly divisive groups like the Human Rights Campaign—which bullies companies into adopting radical, wrong-headed, and reputationally disastrous policies—we also want to caution you against retracting your goal of protecting the civil liberties and dignity of all employees,” the letter continues. “As fiduciaries of your companies, we manage over $16 billion in assets, and we represent working Americans who depend on us to safeguard their financial future, retirement planning, and more. You owe these investors transparency and, when necessary, proactive changes that are in their best financial interests to serve and foster a healthy civil society.”

Inspire Investing director of corporate engagement Tim Schwarzenberger, whose company signed onto the letters, said shareholders “expect those in the c-suite to deliver positive financial results that meet customer demand and contribute to a healthy, civil society.”

“That’s not too much to ask,” Schwarzenberger said in a statement to the DCNF. “For too long, however, corporate leaders have been bullied into taking increasingly extreme positions on hot-button cultural issues and implementing harmful DEI policies that divide up the workforce and society itself.”

Dr. OJ Oleka, Chief Executive Officer of the State Financial Officers Foundation, said public employees “like teachers, law enforcement officers, and fire fighters rely on state financial officers to make and recommend sound fiduciary decisions to secure their financial future.”

“I know this firsthand, as my mother is the beneficiary of my late father’s public pension from his career as a public university professor,” he said in a statement. “My mother deserves the promise of my late father’s pension, and so does everyone else who worked hard to earn one. The DEI regime does not deliver on that promise.”

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States such as Texas, which have taken steps to limit the surge of illegal migrants — reaching record levels under the Biden administration — are now facing lawsuits from the federal government. Similarly, states that passed laws contradicting the Biden administration’s positions on issues like abortion and gender have faced lawsuits challenging the constitutionality of the bills.

The amount of lawsuits the Biden administration has filed is “unprecedented,” Hans​​​​ von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation.

“And all of them are examples of the DOJ abusing its law enforcement power and infringing on federalism by going after the states,” he said.

The DOJ sued Virginia on Friday over an initiative intended to remove non-citizens from the voter rolls “too close” to the election. Republican Gov. Glenn Youngkin called it a “desperate attempt to attack the legitimacy” of the state’s elections.

“With less than 30 days until the election, the Biden-Harris Department of Justice is filing an unprecedented lawsuit against me and the Commonwealth of Virginia, for appropriately enforcing a 2006 law signed by Democrat Tim Kaine that requires Virginia to remove noncitizens from the voter rolls — a process that starts with someone declaring themselves a non-citizen and then registering to vote,” Youngkin said in a statement.

The administration likewise targeted Alabama over an effort to remove noncitizens from the voter rolls. Alabama Secretary of State Wes Allen, who announced in August that 3,251 registered voters had been issued noncitizen identification numbers by the Department of Homeland Security (DHS), noted the federal government repeatedly denied requests for a list of noncitizens residing in the state.

When the state decided to tackle the issue itself, it was promptly hit with a lawsuit. Removing voters from the state registration list within 90 days of an election violates federal law, the DOJ argued.

The Biden-Harris DOJ has launched an unprecedented assault against American voters.

Just days before the election, they have sued the States of Alabama and Virginia to keep illegal aliens on the voter rolls.

Every single American should be outraged. pic.twitter.com/kuzX1RNcDd

— America First Legal (@America1stLegal) October 12, 2024

Other election litigation include the DOJ’s lawsuits against Arizona in July 2022 over a proof of citizenship voting law and Georgia in June 2021 over an election integrity law.

The Supreme Court allowed Arizona to partially enforce its law in August after the Republican National Committee (RNC) intervened in a separate lawsuit brought by a left-wing activist groups. While the high court rejected a ban on casting ballots for president without proof of citizenship, the majority allowed Arizona to reject state voter registration forms that lack it.

In Georgia, Secretary of State Brad Raffensperger suggested the DOJ may have coordinated with activists on the case, requesting documents related to the Department’s decision.

“Given that it is a felony under federal law for an alien to register or vote, DOJ should be applauding the states trying to do something about this problem and helping the states defend lawsuits filed against them instead of suing the states,” von Spakovsky told the DCNF, noting the same is true in the immigration space. “The federal government needs the assistance and help of state governments and state law enforcement to enforce our immigration laws and stop the unlawful flood of illegal aliens coming into the country.”

The Biden DOJ has also taken aggressive action against states attempting to crack down on illegal immigration.

It sued Texas in January over a state law that empowers local authorities to arrest migrants who enter illegally, followed by suing Iowa and Oklahoma in May over similar laws.

In 2012, the Supreme Court held that an Arizona law making it a crime to be in the state without authorization was preempted by federal law.

“There was very little chance of Oklahoma or Texas being successful without overturning Arizona v. US, and maybe that is their objective, but it is hardly improper for the federal government to enforce what the Supreme Court has said are unconstitutional laws infringing on the power of the federal government (however much I disagree with the opinion in Arizona v. United States),” Competitive Enterprise Institute attorney Devin Watkins told the DCNF. “The Supreme Court refused to block the Texas statute on an emergency basis, suggesting that it is at least possible that the Supreme Court may overturn Arizona v. US on appeal.”

Idaho Attorney General Raúl Labrador accused the Biden administration of ignoring states’ rights when the DOJ brought a lawsuit challenging Idaho’s abortion ban to the Supreme Court.

The administration sued shortly after the Supreme Court overturned Roe v. Wade in 2022, alleging Idaho’s Defense of Life Act prevents doctors from performing abortions in emergency circumstances as they claim is required under federal law. The Supreme Court reinstated limits on the law in June, sending the case back to the lower court without deciding whether the statute conflicted with federal law.

Currently, the DOJ is fighting Tennessee’s ban on child sex change procedures for minors at the Supreme Court.

South Texas College of Law Houston professor Josh Blackman told the DCNF it looks like the Biden DOJ is “trying to initiate as many lawsuits as possible before the election.”

“If Trump wins, it will be hard for [the] DOJ to terminate pending cases,” Blackman said. “It is also possible private groups can move to intervene to keep the cases alive.”

Watkins disagreed that the Biden administration has pursued more litigation than usual, noting lawsuits over voting issues are “actually quite common due to the federal election issues at stake.”

“Overall, I don’t believe that the federal government appears to be filing lawsuits against states any more often during this administration than in previous administrations,” he said. “Some of this litigation could infringe on states’ rights if successful, and in many cases, the federal government should lose, but this litigation isn’t unusual.”

During the Trump administration, the government sued California for a cap and trade agreement with Quebec. It also sued California, New Jersey and King County, Washington, over sanctuary city policies.

“The Trump administration did other things to put pressure on states to change their laws, like the DHS’s suspension of NY’s access to the Global Entry program, or threatening federal payments to local jurisdictions,” Watkins added.

The DOJ did not respond to a request for comment.

Featured Image: Screen Capture/CSPAN

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The Colorado Supreme Court dismissed a lawsuit against Phillips after finding the attorney who challenged him in 2017 for declining to create a cake celebrating a male-to-female gender transition did not properly file the case.

“Enough is enough. Jack has been dragged through courts for over a decade. It’s time to leave him alone,” ADF senior counsel Jake Warner said in a statement. “Free speech is for everyone.”

The attorney, Autumn Scardina, called Masterpiece Cakeshop to request a “a pink birthday cake with blue frosting” symbolizing gender transition on the same day the Supreme Court announced it would hear Phillips first case in June 2017.

Scardina initially filed a complaint with the Colorado Civil Rights Commission. After the state and Phillips reached a settlement and the case was closed, Scardina filed a new lawsuit in state court in 2019.

The court held Tuesday that Scardina should have appealed the commission’s decision to close the case rather than bringing a new claim under Colorado’s Anti-Discrimination Act (CADA).

BREAKING The Colorado Supreme Court ruled in favor of Jack Phillips of Masterpiece Cakeshop

Today, the CO Supreme Court dismissed Masterpiece Cakeshop v. Scardina because an attorney harassing Jack did not follow the correct process in suing Jack.

This win ends 12+ years of… pic.twitter.com/QKwwmHlDYV

— Alliance Defending Freedom (@ADFLegal) October 8, 2024

“None of the circumstances that permit an action in the district court occurred here,” the Colorado Supreme Court held. “We therefore vacate both the division’s and the district court’s orders and dismiss this case. In so doing, we express no opinion about the merits of Scardina’s claims, and nothing about today’s holding alters the protections afforded by CADA.”

John McHugh, Scardina’s attorney, told The Associated Press the Colorado Supreme Court “decided to avoid the merits of this issue by inventing an argument no party raised.”

The Supreme Court sided with Phillips in 2018, finding the commission applied CADA in a hostile manner when it found him in violation for declining to create a custom cake for a same-sex wedding. In June 2023, the Supreme Court also sided with Christian web designer Lorie Smith, finding Colorado cannot compel her to create websites for same-sex weddings in violation of her religious beliefs.

“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote in the majority opinion.

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