Out of the Way, LBJ

The Death of Diversity Programs

It’s day five of Trump 2.0.

I find it difficult to evaluate which of the horrendous executive orders is the worst one.

Some, like the Gulf of America, renaming Denali (again), ending energy efficiency (including windmills) and the two-sexes order, are just stupid. Others, like ending birthplace citizenship (a nation wide injunction already in place), the anti-immigration agenda, and the elimination of environmental justice concerns, are quite serious.

But the one that really got my attention was the order to terminate DEI programs. This has been a hobbyhorse for conservative activists, including the authors of Project 2025, for some time. It has hampered higher education by eliminating supports for various affinity groups under the guise of protecting students against WOKE indoctrination. Many universities have over-complied with state legislators, removing anything that even sounds like support for underrepresented populations.

The executive order — titled “Ending Radical and Wasteful Government DEO Programs and Preferencing — purports to undo an executive order from the Biden administration that called for federal agencies to develop “equity action plans”. One might argue that this was done to eliminate waste and improve government efficiency a al DOGE. But it does far more. The order requires the Office of Management and Budget, the Attorney General, and the Office of Personnel Management to terminate “all discriminatory programs, including illegal DEI … mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”

The impact of this EO is to reverse Lyndon Johnson’s 1965 executive order 11246. Johnson’s Executive Order, as reported in Popular Info, “prohibited government contractors with contracts over $10,000 from discriminating in hiring or employment based on race, color, religion, sex, or national origin.” This was part of the implementation language of the 1964 Civil Rights Act.

Even if one accepted the dubious claim that federal DEI programs somehow constituted indoctrination on WOKE ideologies, which is not what those programs have done, ending the preferences identified by LBJ is terribly damaging.

The Federal Government has a responsibility to insure that the contractors carrying out government business are open to considering people regardless of race, color, gender, religion, sex, or national origin. It’s nice to think that that agencies will adopt the MLK “content of their character” ethic in awarding contracts. You don’t have to have a PhD in sociology to recognize that this isn’t going to happen. If agencies have the green light to hire who they want, and all record keeping related to hiring goes away, the likely result will be the awarding of contracts to white (conservative) men.

As the inimitable Elie Mystal observed in The Nation,

All that said, it is more or less legal, and constitutional, to end DEI programs. I want to be very clear about that, because there is legal nuance here that often gets flattened when talking about them. DEI is just a policy, and while that policy is supported by the 14th Amendment (at least it was before MAGA took over the courts), it is not required by the 14th Amendment. The Constitution just wants whites with hiring authority to stop being racist assholes; it doesn’t care how they do it.

What is illegal and unconstitutional is discrimination against non-whites and women in hiring. And that’s the problem with the executive orders. They assume that every single person hired through a diversity program is undeserving of their position, that their qualifications are lesser and that their literal work ethic and talent are suspect. They treat people hired under these programs as if they’re one distinct class of people (apparently, we all look the same to the Trump administration), and instead of looking on a case-by-case basis at who was hired for “diversity” and who was hired simply because they were the best applicant for the job (which is often the exact same person), they cast the whole lot out. And, they effectively warn people not to hire anybody except white guys, because they suggest that anybody who isn’t might be a “diversity” hire which will trigger a lawsuit.

In many ways, Trump’s EO plays off of conservative memes and talking points that have been running for a couple of years. This is the assumption that DEI hires (read, people of color, women, LGBTQ+) are by definition only in their positions because of hiring quotas (which don’t exist). On the other hand, white (straight, conservative) men earned their positions through pure merit (by, for example, supporting the president on television).

While it is within Trump’s authority to revoke a Biden EO or even a Johnson EO, it is not clear that it will be as easy as he and his team believe. Cathy Young points out in the Bulwark that some post-1965 legislation incorporated these programs into actual legislation which isn’t so easily bypassed.

Of course, it remains to be seen how Trump’s DEI bans will be enforced and how they will hold up in the courts. For instance, some have pointed out that while affirmative action to combat race and sex discrimination has never been codified by Congress, Section 342 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 requires “the U.S. Securities and Exchange Commission (SEC) and other federal financial agencies to each establish an Office of Minority and Women Inclusion (OMWI) to be responsible for all matters relating to diversity in management, employment, and business activities.” This is a law, and so cannot be repealed by executive fiat; how it can coexist with Trump’s anti-DEI directive is unclear. (Notably, the pages related to Section 342 on the websites of the Treasury Department and the FDIC are now inaccessible.)

Philip Bump wrote in The Washington Post today that, according to the Government Accountability Office, most senior federal employees are white men.

That GAO report also detailed other data about the federal workforce, indicating that the demographics of government employees hadn’t changed much over the preceding 10 years. In 2011, the start of the window considered in the report, about 72 percent of federal employees were White (including White Hispanic people). In 2021, the most recent year with data, 68 percent were. The percentage of Black (and Black Hispanic) workers stayed steady at about 20 percent of the workforce; the increase in diversity was mostly among other racial groups, particularly Asian Americans.

He points to data that about 7 in 10 Republicans believe that white people suffer from some or a lot of discrimination in American society. That belief (the result of decades of right-wing propaganda) is directly related to the “meritorious white people getting passed by” argument above.

If Trump’s executive order withstands legal challenges, it means that the next four years will see a whitening of the federal workforce (or what’s left of it after Musk is done). Those not lucky enough to be born white males will suffer economically. It doesn’t take much imagination to see what the impacts would be on minority-owned small businesses.

But I think Trump and his entourage don’t care about that. After all, he is enamored with the McKinley administration. Back when women couldn’t vote and Plessy v. Ferguson was the law of the land. You know, the way things are supposed to be.