On her first day in office, Attorney General Pam Bondi issued a memo calling for a report on how the Department of Justice can target big companies’ diversity, equity and inclusion programs. The memo is unlikely to generate a significant number of lawsuits against real-world companies. But it will speed up the already underway process of corporations abandoning or at least rebranding their DEI efforts.
Bondi’s memo is one of a raft of salvos on subjects like criminal investigations of lawyers who criminally investigated President Donald Trump, holding up federal grants for so-called “sanctuary cities” that refuse to cooperate with immigration authorities, and firing Justice Department lawyers who refuse to sign briefs or work on cases they consider unlawful or immoral. All focus on issues Trump campaigned on. Only the DEI memo, however, directly follows a legal-cultural process triggered by the Supreme Court.
The Supreme Court’s role in the war on DEI began in June 2023, when the justices decided the landmark SFFA v. Harvard case. In that 6-3 decision, the court held it was unconstitutional and unlawful for universities to use racial diversity as a basis for admissions under Title VI of the Civil Rights Act of 1964.
Technically, the SFFA case applies only to educational institutions that are barred from discriminating under Title VI. However, the core logic of the decision — that the Constitution and civil rights laws require colorblindness — can easily be extended to workplaces barred from discriminating under Title VII of the same law.
For this reason, it’s not at all surprising that the Bondi memo simply assumes that companies are not allowed to use racial diversity as a rationale for employment decisions: That’s the standard conservative extension of the SFFA precedent.
Title VII outlaws discrimination in employment decisions, not pro-diversity rhetoric. Even Bondi’s memo acknowledges that legal reality by targeting “illegal discrimination and preferences.” Any attempt to bring civil enforcement actions based on corporate speech alone would violate the free-speech rights of the companies under the First Amendment.
That’s why the investigations that Bondi’s memo foreshadows seem unlikely to lead to many actual lawsuits. A successful civil suit against a DEI program would have to prove that a company was making specific employment decisions on the basis of race, sex, sexual orientation, transgender status or other characteristics. That would be a very difficult case to make in the real world.
Therefore, the evident purpose of the memo is to advance the culture war against DEI, not to generate a meaningful body of litigation.
So, the mention of criminal investigations is almost certainly intended to further panic corporations and encourage them to abandon DEI programs that aren’t actually in violation of civil rights laws.
Therefore, legally speaking, the Bondi memo and any proposals that follow from it are likely to have limited effect. As cultural propaganda, however, the memo incentivizes companies to stop saying publicly that they value DEI. When the Supreme Court struck down the diversity rationale, it tarnished the word “diversity” in a way that was already going to make it difficult for corporations to sustain DEI programs. The Trump administration is making it harder still.
Some companies may desire to keep their perfectly legal DEI programs in place. That will only make sense, however, if there is a constituency on the left that wants them, too. Some voices on the left are saying DEI was never much more than a tool for corporations to distract attention from anti-union activity. If that view prevails, DEI will have little political utility for any company since it will be disliked by right and left alike.
I’ve long argued that diversity entered public discourse only gradually as a result of the Supreme Court blessing it as a permissible rationale for affirmative action in college admissions — and that it would, therefore, gradually fade away when the Supreme Court withdrew its blessing. The Trump administration is speeding up the process; but it was the conservative justices who made it all but inevitable.
Noah Feldman is a Bloomberg Opinion columnist and a law professor of law at Harvard University.
