One day after President Biden’s inaugural address stressing national unity, he signed an “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” He created another Executive Order in February 2023, this time expanding the equity mandate to the operation of every federal program. These executive orders (EOs) had a powerful effect. Scores of new preferential programs were created and administered by hundreds of “diversity, equity, and inclusion” (DEI) officers scattered throughout the federal bureaucracy.
As Vice President Harris explained on the 2020 campaign trail, there is a big difference between equal treatment of individuals and group equity. Under equity, she suggested, “We all end up in the same place.” To achieve equal outcomes for dissimilar groups, various forms of preferences are the quickest tool.
Among the many previous EO’s that President Trump revoked were those related to the DEI agenda.
His January 21, 2025, EO “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” not only criticized the large number of American institutions that adopted discriminatory DEI policies but ordered all federal executive departments and agencies “to terminate all discriminatory and illegal preferences, mandates, policies, programs, guidance, regulations, enforcement actions, consent orders and requirements.” It also ordered all these agencies to combat illegal private-sector DEI programs by requiring them to identify up to nine private DEI programs for civil rights compliance. The Attorney General and the Secretary of Education were required to issue within 120 days instructions for all educational institutions that receive federal funds on how to comply with the Students for Fair Admissions ruling against racial preferences.
It is obviously too soon to predict how this EO will play out in the bureaucracy and the courts, but it does reflect a growing national opposition to racial preferences. Since 2021, federal courts have rejected the use of racial preferences in a variety of areas. This development is explored in more detail in my forthcoming coming article in the Spring issue of Academic Questions, “Did the Biden-Harris Administration Inadvertently Kill Racial Preferences?” but it can be summarized here.
As part of its COVID-19 relief funding, the Biden-Harris administration prioritized restaurants owned by minorities and women, even though funds were likely to run out before white male owners could apply. When those preferences were challenged in 2021, the Sixth Circuit found them unconstitutional in Vitolo v. Guzman. (999 F.3d 353). More significantly, the majority set out new strict scrutiny standards that were to be controlling whenever any government employs such preferences.
The government has a compelling interest in remedying past discrimination only when three criteria are met:
First, the policy must target a specific episode of past discrimination. It cannot rest on a ‘generalized assertion that there has been past discrimination in an entire industry.’
Second, there must be evidence of intentional discrimination in the past. Statistical disparities don’t cut it, although they may be used as evidence to establish intentional discrimination.
Third, the government must have had a hand in the past discrimination it now seeks to remedy.
Another COVID-19 relief program forgave 120 percent of federal loans, but only for minority farmers and ranchers. Beneficiaries did not even need to be in default on their USDA loans to qualify. The USDA announced that the Biden-Harris Administration is committed ‘to equity across the Department by removing systemic barriers and building a workforce more representative of America. announced that the Biden-Harris Administration is committed “to equity across the Department by removing systematic barriers and building a workforce more representative of America.” These USDA racial loan preferences were struck down by five federal district courts nationwide. (Wynn v. Vilsack, 545 F. Supp. 3d 1271 (M.D. Fla. 2021); Faust v. Vilsack, 519 F. Supp. 3d 470 (E.D. Wisc. 2021); Miller v. Vilsack, No. 4:21-cv-0595, 2021 WL 1115194 (N.D. Tex. 2021); Holman v. Vilsack, No.21.-1085, 2021 WL 2877915 (W. D Tenn. July 8.2021); and Strickland v. Vilsack, No: 2-24-cv-00060-Z. 2024 WL 2886574 (N. D Texas, June 7, 2024)).
In 2023, the Supreme Court handed down its long-awaited Students for Fair Admissions decision (SFFA) (600 U.S.181 (2023). Over the objection of the Biden-Harris Department of Justice, the Court found Harvard University and the University of North Carolina-Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment, which requires that no state shall “deny to any person … the equal protection of the laws.” Justice Gorsuch, in concurring, also thought those campus admission procedures violated Title VI of the Civil Rights Act of 1964, which forbids discriminating against any person based on race, color, or national origin from participation in any program or activity receiving Federal financial assistance. Almost all state and local governments and most campuses receive federal funding.
In July 2023, following up on Vitolo and incorporating SFFA, a federal district court found the federal contracting 8(a) program’s race preferences unconstitutional. (Ultima Serv. Corporation v. U.S. Dep’t of Agriculture, 683 F.Supp.3d 745 (E.D. Tenn. 2023). The key judicial finding was that the decades-long practice in many federal programs of “presuming” that persons identifying with certain racial and ethnic groups were “socially and economically disadvantaged” and thus eligible for preferences was illegal.
In another 2023 case, a federal district court found the Biden-Harris Administration’s policy for its new Minority Business Development Agency (MBDA) regional service centers violated the Fifth Amendment’s equal protection guarantee. These centers were supporting firms whose owners were from some races and ethnicities if they were not white. The MBDA was begun in the Nixon administration, but the race-exclusive Biden service center approach resulted in a court-mandated national permanent injunction. (Jeffrey Nuziard et.al. v. Minority Business Development Agency et. al. (No.4:23-cv-00278-P, 2024 WL 4416885 (N.D. Tex. April 26, 2024).
The U.S. Department of Transportation’s Disadvantaged Business Enterprise program had survived multiple challenges over its four-decade existence. On September 19, 2024, however, a federal district court ruled that its presumption of social and economic disadvantage status for certain minorities, which supported racial preferences in federally funded contracts, lacked both a compelling interest and narrow tailoring. (Mid-America Milling Company v. US. DOT, 2024 WL 4367183 (E.D. Ky.).
[RELATED: The Naval Academy Should Jettison Race-Conscious Admissions Policies]
Federal courts have concluded that the Constitutional standard is equal protection for individuals, not equity for groups. The Biden-Harris Administration’s equity policies were so egregious that even preferential programs created decades ago were found unconstitutional under newly created judicial rules. That Administration was zero for nine in defending racial preference programs. Their DOJ did not appeal in any of these defeats, either because they did want to risk affirmations against preferences in higher courts or because they realized the programs were, in fact, unconstitutional in the new era. Judicial conclusions that racial and ethnic categories are imprecise and stereotypical in modern America will be difficult to overcome regardless of political pandering.
The Trump EO on ending illegal discrimination, therefore, stands on a solid background of recent judicial decisions. That doesn’t mean it will be easy to enforce. There are hundreds, perhaps thousands, of racial preferences embedded in the policies and practices of federal agencies, state and local governments, campuses, corporations, foundations, etc. Some of them, because of changes in public opinion or the fear of losing federal funding, may be eliminated without litigation. Others may require the time and resource-consuming process of bringing a lawsuit. State Attorney Generals may be key in this decision as they provide advice in their states about new legal requirements or seek to defend existing racial preferences. The AGs should be pressed to explain their legal positions on these matters.
Citizens, individually or through their associations, can play an important role in identifying existing preferences; however, they may be disguised and serve as plaintiffs if necessary. The stage is set for ending all racial preferences, where they are not narrowly tailored remedies for recent Constitutional or statutory violations, but the path toward achieving that goal will require sustained effort. As the Supreme Court said in SFFA, “Eliminating racial discrimination means eliminating all of it.”
Image: “A protest in Boston’s Copley Square on October 14, 2018 to support the lawsuit from Students for Fair Admissions against Harvard” by Whoisjohngalt on Wikimedia Commons
