According to the White House, “hours after taking the oath of office,” President Joe Biden embarked on an ambitious “day one,” “whole of government” agenda to “advance racial equity.” What followed was a shock-and-awe program of racial preferences. During his term, Biden signed three signature pieces of legislation — the American Rescue Plan Act, the Inflation Reduction Act, and the Bipartisan Infrastructure Act — which gave certain preferred racial groups access to programs, benefits, and special treatment, while excluding others. These programs spent tens of billions in tax dollars and affected millions of Americans.
None of these programs fared well in court. In the ensuing years, courts struck down several programs as unconstitutional race discrimination, such as the Farmer Loan Forgiveness Program, Restaurant Revitalization Fund, and the Minority Business Development Agency. In fact, the Biden administration is 0 for 9 in defending racial preferences in court.
Litigation to end discriminatory programs is essential but time-consuming and incremental. While the administration lost in court and conservative law firms won, these legal victories just scratched the surface of Biden’s “equity agenda.” According to a new analysis published by the Wisconsin Institute for Law and Liberty, more than 60 federal discriminatory programs remain on the books, untouched by lawsuits.
Some of these are substantial, such as the Department of the Treasury’s two flagship race-based programs: the $2.5 billion Small Business Credit Initiative (which discriminates against small businesses) and the $10 billion Homeowner Assistance Fund (which discriminates against homeowners). The Department of Agriculture alone runs 30 separate race-based programs that discriminate against farmers in the areas of conservation easements, disaster assistance, and a bevy of grant programs. In all, at least 11 federal agencies now run racially discriminatory programs that affect Americans every day, all under the banner of “equity.”
What can the new administration do about these entrenched DEI programs? There are at least four critical steps Trump can take immediately to make good on campaign promises to vanquish DEI from the federal bureaucracy.
First, on day one, Trump should rescind Biden’s Executive Order on Advancing Racial Equity. This order pointed the entire federal bureaucracy toward racialized policy agendas and the development of “equity action plans,” which discriminated against individuals in hiring, firing, promotion, and even public-facing benefits and services. According to a report from Do No Harm, this executive order resulted in more than 500 race-based equity policies installed in more than 80 agencies.
President Trump can then reissue his own equality executive order or another order that would reorient all the agencies toward equality and individual treatment and away from group-based racial stereotyping.
Second, the president should instruct his incoming attorney general to conduct a thorough legal review of all agency DEI or affirmative-action programs and then shut down any program that unconstitutionally discriminates based on race. According to a 1994 opinion from the DOJ’s Office of Legal Counsel, the president may “appropriately decline to enforce a statute that he views as unconstitutional,” although such a power should be exercised “with caution” so as not to infringe on the powers of the other branches. The Constitution demands equal treatment of all Americans, and the president should not tolerate the continued unconstitutional race discrimination by federal agencies.
Third, Trump should direct the incoming attorney general to settle, where appropriate, multiple lawsuits challenging unconstitutional DEI programs and other discriminatory programs. This would include the largest federal affirmative-action program, the Disadvantaged Business Enterprise program, which has been already preliminarily enjoined by a federal court.
Other pending lawsuits should similarly be settled, such as the challenge to West Point’s race-based admission program, the Department of Education’s discriminatory McNair Postbaccalaureate Achievement Program, and the USDA’s racialized disaster relief program. Prior presidents have eagerly resolved lawsuits defended by prior administrations, and President Trump’s DOJ should not defend clearly unconstitutional race-based programs. Although “sue and settle” ought not to be used to evade otherwise valid laws, the federal government should not fight it out in court to preserve racialized and clearly unconstitutional government programs.
Fourth, President Trump should use the Department of Education, DOJ, the Equal Employment Opportunity Commission, and other agencies with jurisdiction to investigate and resolve allegations of racial discrimination among K-12 schools, higher-education institutions, hospitals, and other entities that receive federal funds. Title VI of the Civil Rights Act of 1964 is a powerful tool to root out illegal DEI programs among recipients of federal funds. Federal agencies may use their powers to investigate universities that discriminated against students during the pro-Hamas protests, local school districts that use “equity” to discriminate against students, and hospital systems that discriminate against patients based on race.
For those who favor equality and oppose racially discriminatory DEI, we have won a series of large and decisive battles. The Supreme Court is enforcing the Constitution and federal law, both of which ban race discrimination, while the executive branch and Congress appear oriented toward race neutrality in government policy.
Now the hard work begins. In this new enforcement phase, advocates for equality must root out DEI and other racially discriminatory policies from every nook and cranny of the federal government. President Trump can go a long way to make equality a reality, so long as he chooses bold actions and empowers decisive leaders.
Daniel Lennington directs the Equality Under the Law Project at the Wisconsin Institute for Law and Liberty, where he serves as deputy counsel.
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