DEI Initiatives in the Crosshairs of the Administration: What Nonprofits Need to Know to Mitigate Their Risk
by Jeffrey S. Tenenbaum, Esq. and Kevin Serafino, Esq.
Tenenbaum Law Group PLLC
Article reprinted with permission
Shortly following his inauguration in January, President Trump signed a flurry of Executive Orders (“EOs”) implementing a wide array of administration policies. One of the EOs issued January 21, entitled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the “DEI EO”), is designed to ban both public- and private-sector programs encouraging diversity, equity, and inclusion (“DEI”). Another, entitled “Ending Radical and Wasteful Government DEI Programs and Preferencing, (the “EJ EO”), terminates environmental justice programs within the Executive Branch and targets federal contractors and grant recipients that advance DEI and environmental justice.
Shortly following her confirmation by the U.S. Senate, on February 5, Attorney General Pam Bondi issued a pair of memoranda to U.S. Department of Justice (“DOJ”) personnel, directing the Department to eliminate internal practices related to DEI and environmental justice and directing various elements of the DOJ to “investigate, eliminate, and penalize” private companies and universities (including nonprofits) that have “illegal” DEI programs. She instructed DOJ officials to enforce federal civil rights laws to abandon what she called “illegal discrimination and preferences,” outlining strategies such as launching criminal and civil investigations. These directives were issued to implement the President’s earlier EOs.
While the concepts of these EOs and DOJ enforcement memoranda were not surprising, given widespread criticism of DEI and other programs considered “woke” by the political right, the text of the directives surprised many with their explicit mentions of private sector and nonprofit organizations, many of which have long-established programs dedicated to DEI efforts. Some others are organized with DEI as a central tenet or purpose. The new directives have raised many concerns among nonprofit executives about the legality of both legacy and emerging DEI efforts and the status of their organizations’ funding secured through federal grants, cooperative agreements, contracts, and loans.
At a minimum, these directives signal the administration’s intent to pressure private-sector organizations regarding their DEI practices. A more expansive view of them foreshadows an aggressive effort to challenge DEI programs through lawsuits and regulations targeting organizations perceived as ideological and political enemies of the current administration and its policies.
