Recent Department of Justice guidance—perhaps “threat” more appropriately captures its approach—regarding private-sector use of diversity, equity, and inclusion programs has rightfully drawn ire from liberal and progressive critics for furthering the Trump administration’s goals of resegregating the workforce. The guidance, which Attorney General Pam Bondi signed the day she was sworn in, claims that DEI programs violate federal civil rights laws and that DOJ will investigate companies and educational institutions who employ such programs, and potentially pursue criminal charges against them. The Department of Education later jumped in with a similar “Dear Colleague” letter designed to intimidate educational institutions into eschewing discussions of what the right loves to call “woke ideology.” That guidance, too, rests on shaky ground, but the primary goal—to intimidate powerful American institutions—couldn’t be clearer.
Bondi’s memo cites with approval President Donald Trump’s claim that diversity, equity, inclusion, and accessibility policies “violate the text and spirit of our longstanding Federal civil-rights laws” and “undermine our national unity.” Yet every informed citizen knows that Trump, Bondi, and their ilk do not care about national unity or civil rights laws. They merely want to use “DEI” as a fig leaf to reinforce the subordination of minorities: Black people, women, trans people, disabled people, and any other group they might smear as “woke,” “communist,” or “anti-American.”
The DOJ memo itself has precious little grounding in law. No court has held that corporate DEI programs violate federal civil rights laws. The possibility of criminal charges merely for promoting diversity, equity, inclusion, or access makes no sense; none of the statutes that the Criminal Section of DOJ Civil Rights Division enforces has any plausible connection to such programs. That’s likely why Bondi doesn’t refer to any specific statutory section that could form the basis of a criminal charge—no such section exists.
But even if the DOJ never brings any cases under these baseless claims, the Trump administration’s revanchist forces have already prevailed in part. Plenty of private-sector companies—from big-box retailers to tech behemoths to law firms—have retreated from their previously touted commitments to diversifying their workforces: obeying in advance, in the all-too-frequent motto of this extremely stupid moment.
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Unlike the DOJ’s memo, most DEI programs have strong legal justifications. Federal civil rights laws have little to say about these policies, and DEI programs do not establish quotas, discriminate on the basis of any protected class, or loosen standards or qualifications. They merely encourage employers, schools, and programs to consider a range of perspectives, backgrounds, and social differences in their work. And any governmental effort to interfere with private sector employment, absent evidence of discrimination, merely serves as state-supported segregation.
To defend against specious DOJ “civil rights” investigation targeting DEI programs, companies can assert their free speech rights under the First Amendment. Yet the relative silence on this front shows that the long-running quest to vindicate the free speech rights of the private sector hasn’t brought protections that trickle down to the rest of us.
Although it might not intuitively feel like a form of “speech,” the First Amendment protects corporate DEI programs. Freedom of association, which falls within the scope of the First Amendment, allows groups to choose whom they associate with and presumably hire. And although private companies must comply with federal employment discrimination laws, there’s no evidence that DEI rises to that level. Initiatives that encourage awareness of social dynamics, absent other evidence, don’t constitute evidence of discrimination. If it did, no employer could send a job posting to an organization assisting veterans or discuss parental leave benefits with job applicants.
Again, no court has ever treated these minor interventions as violative of civil rights or employment discrimination laws. The closest case (wrongly decided, in my view) that might support Bondi’s memo, American Alliance for Equal Rights v. Fearless Fund Management, concerned a competition for $20,000 only open to businesses owned by Black women. In that case, the Eleventh Circuit held that the program violated federal civil rights law by supposedly discriminating on the basis of race. I’d be quite surprised if DOJ can find a DEI program with a similar structure, given the attention that the Fearless Fund decision received.
The DOJ memo seeks to draw an analogy between affirmative action programs in higher education, which the Supreme Court recently declared unlawful, and corporate DEI initiatives. But no evidence exists that DEI programs resemble in any way the admissions program the Court struck down in Students For Fair Admissions. Affirmative action in higher education, with its specific admissions cycle, selection process, and capacity, differs in fundamental ways from DEI programs in corporate America. That hasn’t stopped the likes of Ed Blum from making threats against such programs, but anyone can make a threat ungrounded in law.
I largely agree with the Supreme Court that the Constitution protects the speech rights of corporations; my issue is how the justices made everything (like common-sense restrictions on corporate spending in elections) “speech” and thus subject to constitutional scrutiny. On the one hand, the Founders probably didn’t care much about the free speech of ExxonMobil. On the other hand, & First Amendment protections for corporate entities, ProPublica, the ACLU, and Ben and Jerry’s could become the targets of government censorship for reporting on Justice Clarence Thomas’s vacations, suing to stop enforcement of Trump’s Muslim ban, or putting out an Obama-themed ice cream flavor, “Yes Pecan.”
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But in a world in which corporations do have free speech rights, one expects them to flex those rights. Fortune 500 companies and their trade associations invoke the First Amendment to challenge everything from data privacy laws to environmental regulations on a regular basis. The dearth of legal challenges to the DOJ memo suggests that corporate America, believing the tides have turned on empowering minority groups, has decided to let this brazen imposition on their free speech rights stand. It also suggests that they didn’t care about diversity, equity, and inclusion so much as they cared about being able to publicize DEI programs on their websites.
With the absence of any plausible civil rights, employment discrimination, or constitutional claim, and the strength of corporate First Amendment rights, one would expect the companies to say, basically, “piss off.” They haven’t, because of how easily Trump and his entropic Rasputin, Elon Musk, can throw sand in the gears of any company’s normal operations. But the First Amendment goes unsaid in the silence; particularly, the idea that protecting one party’s speech rights protects all of us.
Obviously, trusting a corporation to do right by its customers or workers makes little sense given the corporate priorities of profit maximization and market dominance. But sometimes—as in the case of DEI programs—corporations are in the best position to vindicate their own First Amendment rights in ways that also protect the rights of others. If these corporations would rather capitulate to the Trump administration’s resegregation efforts than fight for their right to do something as clearly protected as building a diverse workforce, that undermines the justification for corporate free speech rights in the first place. There’s little point in protecting their speech if they won’t bother to say anything.
