Introduction
In the first few months of the second Trump administration, the president has targeted diversity, equity, inclusion and accessibility efforts that allegedly violate the Constitution and civil rights laws. The president issued several executive orders, summarized below, that target anti-discrimination regulations and policies, federal agency efforts, and law firms’, higher education institutions’ and private companies’ practices. Agency heads have also taken steps to persuade the private sector to abandon DEI. This guidance seeks to give journalists some tools to cover these actions and their effects.
Arguably, the federal government has pursued DEI efforts dating at least to the 1960s, when employment nondiscrimination protections were enacted. Presidents John F. Kennedy and Lyndon B. Johnson issued executive orders that called for affirmative action for government contractors and federal employees, respectively. Congress passed the Civil Rights Act of 1964, which prohibited employment discrimination based on race, color, religion, sex and national origin, and the Rehabilitation Act of 1973, which prohibited discrimination based on disability in federal agency and federal contractor hiring. (Neither the Civil Rights Act nor these executive orders authorized group preferences; similarly, the Supreme Court has found quotas to be unconstitutional.) In recent decades, DEI values have become more widely applied.
Note: Executive orders set policy for and bind federal Executive Branch agencies. They do not supersede the Constitution or laws passed by Congress, and they can be challenged in court or rescinded by future presidents. Indeed, many of the orders below have been challenged. As these cases progress, it falls to journalists to explain the orders’ effects and investigate their broader purposes. Audiences are better served when we cut through the jargon and tell stories that show the impacts on our communities.
Revokes 78 executive orders issued by President Joe Biden, including several related to DEI efforts, and asserts that DEI has “replaced hard work, merit, and equality with a divisive and dangerous preferential hierarchy.”
Instructs federal agencies to terminate programs, policies, preferences and activities related to “discriminatory” programs, including “illegal” DEIA programs, policies and activities; “equity-related” grants and contracts; and DEIA and environmental justice offices and positions.
Revokes several executive orders, dating back to 1965, aimed at preventing discrimination in federal hiring, programs and contracting. Instructs federal agencies to terminate “discriminatory and illegal” preferences, mandates, regulations, enforcement actions and consent orders. Prohibits federal contractors and grantees from considering protected demographic characteristics in ways the administration asserts violate federal laws. Directs the removal of references to DEI and DEIA in all federal contracting and federal financial assistance to states and other grantees. In addition, directs agencies to encourage the private sector to end DEI practices and to identify major organizations — publicly traded corporations, large nonprofits and foundations, state and local bar and medical associations, and institutions of higher education — for potential civil compliance investigations.
- Memorandum: “Keeping Americans Safe in Aviation”
Orders the heads of the Department of Transportation and the Federal Aviation Administration to rescind all DEI hiring initiatives, including any preferencing policies or practices.
- E.O. 14185: “Restoring America’s Fighting Force”
Directs the departments of Defense and Homeland Security to “abolish every DEI office” within them and to prepare a report of DEI initiatives, instances of discrimination allegedly favoring people of color and women, and prior activities promoting a race- or sex-based preference system. Prohibits the DOD and the U.S. military from promoting “divisive” theories.
- E.O. 14210: “Implementing the President’s ‘Department of Government Efficiency’ Workplace Optimization Initiative”
Directs agencies to prioritize DEI initiatives for elimination in federal workforce reduction efforts.
- E.O. 14279: “Reforming Accreditation to Strengthen Higher Education”
Directs the secretary of education to deny or terminate recognition for higher education accrediting organizations that engage in unlawful discrimination under the guise of DEI initiatives. Directs the attorney general and the secretaries of education and health and human services to investigate law schools and medical schools for unlawful discrimination and DEI requirements.
- E.O. 14281: “Restoring Equality of Opportunity and Meritocracy”
Asserts that disparate impact liability, a theory of discrimination in which the application of a facially neutral policy disproportionately affects a specific group, violates the Constitution. Directs federal agencies to stop using disparate impact liability in enforcement, deprioritize enforcement of statutes and regulations that include it and remove references to it in regulations.
- Executive orders targeting law firms for DEI programs (among other reasons):
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- E.O. 14230: “Addressing Risks From Perkins Coie LLP”
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- E.O. 14237: “Addressing Risks From Paul Weiss”
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- E.O. 14250: “Addressing Risks From WilmerHale”
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- E.O. 14263: “Addressing Risks from Susman Godfrey”
Alleging that the respective law firm engaged in illegal racial or other discrimination, such as quotas, under the guise of DEI programs, each order directs federal authorities to suspend security clearances held by firm employees, terminate contracts with the firm, limit firm employees’ access to federal buildings, and refrain from hiring the firm’s employees. E.O. 14230 also directs the Equal Employment Opportunity Commission chair and the attorney general to investigate large firms for compliance with race- and sex-based nondiscrimination laws.
General guidance and recommendations
Keep in mind the scope of an executive order. Executive orders don’t supersede existing constitutional protections and federal anti-discrimination laws, and they only apply to federal agency actions, policies and programs. However, executive orders will affect how agencies interpret and enforce federal laws and implement programs. Moreover, some of these orders direct agencies to review or investigate private companies, while others seek to punish companies the administration alleges to have engaged in “illegal activity” — with no charges filed or liability found.
Don’t take assertions and language at face value. The orders give, at best, vague definitions of diversity, equity, inclusion and accessibility and use acronyms in an attempt to obscure and weaponize the concepts. And it’s unclear what specific behaviors the administration considers to be “illegal.” It’s worth teasing out what the administration believes is objectionable about diversity, equity and inclusion. Have “too many” women, people of color, people with disabilities or other minorities been hired? Is there evidence of unqualified hires or promotions? Do the orders presume rampant discrimination against white, cisgender heterosexual men?
Recognize the nuance between DEI and accessibility. Several orders tie diversity, equity and inclusion programs to accessibility efforts, which have different legal requirements and protections. That is, diversity, equity and inclusion programs likely have some protection under civil rights laws, provided they do not discriminate based on a protected category, while disability rights laws impose affirmative obligations on employers.
Be aware of charged language. The orders frequently use charged terms and phrases, such as “illegal and immoral,” “infiltration,” “immense public waste” and “betrayed its mission.” These are not neutral descriptors, and journalists should be wary of repeating this language without critical analysis.
Be aware of the orders’ limitations. The orders provide caveats, such as “to the maximum extent allowed by law,” “as appropriate” or “consistent with applicable law,” to temper their scope. Given that the orders acknowledge that they likely push against legal protections, journalists should be mindful not to overstate what the orders purport to do.
Consider why DEI started — and why it might be challenged. Diversity, equity, inclusion and accessibility are values put into practice to combat discrimination — against people of color, women, LGBTQ+ individuals, veterans, people with disabilities and other minorities. And yet, it’s worth considering how discrimination (e.g., pay disparity between men and women and segregated occupations) persists and how federal employment protections for sexual orientation and gender identity minorities, established by the Supreme Court in 2020, have been challenged and narrowly interpreted in lower courts.
Seek out organizations and people affected by the orders. These actions affect a broad swath of society — federal employees, government contractors and grantees, beneficiaries of federal programs, nonprofits, law firms, and universities. Ask: What will be lost if DEI programs are eliminated? What are the immediate and long-term impacts? Who will be disproportionately affected — and how?
Speak to experts who can put the orders in context. Legal analysts can speak to the legal scope of an order and to whether specific actions by federal agencies might violate the Constitution or federal law. Business and human resources experts can speak to the competitive advantages of diversity, equity, inclusion and accessibility efforts, as opposed to framing it as a legal constraint.
Know the legal landscape. Be aware of existing legal protections and the scope of constitutional protections and federal, state and local anti-discrimination laws. Stay abreast of lawsuits challenging the administration as they move through the judicial system. Postures can shift dramatically, sometimes quickly, so be aware of new developments and potential next steps and actions.
Be aware of other actions the administration takes. Beyond the president’s orders and memos, federal authorities are working to reshape federal workforce operations and enforcement of civil rights laws. For example, federal agencies have dissolved employee affinity groups and canceled special observances; the acting EEOC chair sent letters to 20 law firms requesting details on DEI-related employment practices without initiating charges, breaking from protocol (investigations are usually confidential until a lawsuit is filed); and the attorney general dropped civil rights lawsuits that alleged discriminatory hiring by local police and fire departments. Also, keep in mind how these orders divert time, energy and resources.
Look for ripple effects. How have the public, state and local governments, nonprofits, higher education institutions and businesses responded? For instance, the administration’s actions prompted several large corporations to reduce, eliminate or rename their DEI efforts, which in turn prompted consumer backlash and boycotts. More recently, some companies have quietly reinstated or rebranded their programs to avoid the phrase “diversity, equity and inclusion” and the letters DEI. Will companies keep or change their policies and practices and, if so, why? What effect will that have on hiring and customer behavior?
Resources
If you or someone in your newsroom has questions about language use, NLGJA: The Association of LGBTQ+ Journalists is available to provide peer-to-peer guidance. The resources below may also help:
- ACLU: LGBTQ Rights Project — national civil rights advocacy organization, offers a guide on how executive orders work
- American Bar Association — legal membership organization, offers insight and commentary on how federal law affects human rights
- American Pride Rises — nonprofit DEI advocacy initiative with a DEI legislative tracker
- Lambda Legal — legal organization that specializes in LGBTQ+ civil rights litigation, education and policy work
- The Leadership Conference on Civil and Human Rights — coalition of more than 240 national civil rights organizations, works to defend and expand civil rights, has resources on DEIA
- Legal Defense Fund — legal organization focused on racial justice, advocates for DEI efforts and has a site dedicated to defending diversity
- Movement Advancement Project — nonprofit think tank, tracks state and federal laws and policies that affect LGBTQ+ people, has a report on efforts to dismantle DEI programs
- National LGBTQ+ Bar — legal membership organization, tracks anti-LGBTQ+ executive order litigation
- National Center for LGBTQ Rights — national legal organization that provides legal assistance to LGBTQ people and advocates for LGBTQ rights
- National Women’s Law Center — legal organization focused on gender justice
- Trans Journalists Association — membership organization with guidance on anti-trans laws and policies and executive orders that affect trans Americans
- USCourts.gov — website for the U.S. Courts, offers a guide to the federal courts
- Williams Institute, UCLA School of Law — research center that publishes empirical studies and legal analyses of policies affecting LGBTQ people
About NLGJA: The Association of LGBTQ+ Journalists
NLGJA: The Association of LGBTQ+ Journalists is a journalist-led association working within the news media to advance fair and accurate coverage of LGBTQ+ communities and issues.
Our Stylebook on LGBTQ+ Terminology, in addition to this supplement, is intended to complement the long-form style books of individual publications, as well as The Associated Press Stylebook, which also has extensive guidance on language around gender, sex and sexual orientation.