From DEI to Equal Protection: A New Direction in Civil Rights Policy
The Trump administration is restoring the core value of equal opportunity to civil rights enforcement. It is eviscerating the race-baiting, intersectional policies of the Biden and Obama administrations, and giving substance to the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services (2025) that whites, men, and heterosexuals are not held to a higher standard in discrimination cases.
This is a time for rejoicing, tempered by concern that the administration will not have time to complete its work, and that its reliance on executive orders, rather than legislation and consent decrees, will allow the next Democratic president to rip asunder President Trump’s laudable accomplishments.
Despite more than a century of Supreme Court decisions forbidding discrimination on the basis of race, Democrats generally, and progressives specifically, have inverted President John F. Kennedy’s executive order establishing affirmative action. Intended to bring an end to discrimination because of race, creed, color, and national origin, progressives instead transformed affirmative action into a system of preferences based on melanin content, and absorbed this once hopeful construct into radical philosophies used to justify bias, including Critical Race Theory (CRT), intersectionality, disparate impact theory, and ultimately DEI (diversity, equity and inclusion).
They oppose Trump’s effort to dismantle their race-addled policies with every lever available to them. Ivy League universities have to be bludgeoned into enforcing equal rights. Blue city mayors continue their fight to sideline white males. Hollywood artists and programmers refuse to work for studios and tech companies that recognize political and legal realties. Liberal Supreme Court justices bemoan the majority’s refusal to rule based on the intersectional hierarchy of so-called “marginalized” minorities, and Obama- and Biden-appointed federal judges enjoin proper exercises of executive power.
CRT originated in the 1970s as a tortured rationale advocating that colorblind laws inevitably serve the interests of white people.
Intersectionality has become a cornerstone of CRT. Developed principally by Columbia Law Professor Kimberlé Crenshaw, it utilizes a hierarchy of social oppression to allocate benefits and burdens, providing the doctrinal basis for DEI policies, transgender activism, and antisemitism. The latter shows the bankruptcy of the dogma: Despite hundreds of years of oppression, pogroms and the Holocaust, as a result of educational and business achievements, Jews are seen as powerful oppressors, while Palestinians and other Muslims are seen as marginalized minorities.
Disparate impact is a central tenet of progressive litigation strategy. Its premise that marginalized communities must receive their proportionate share of opportunities is the progenitor of the “equity” prong of DEI. Liability is established if there is a shortfall, regardless of whether that shortfall is caused by discrimination.
DEI is the fusion of these philosophies, a malevolent form of affirmative action that allocates benefits based on race, sex, and gender identity. To ensure pre-determined outcomes, progressive decisionmakers and courts have tampered with and eliminated entry exams, waived criminal background checks, and watered down academic, disciplinary, admissions, graduation, employment, and promotion standards.
In 2024, the Biden administration took a bow for more than 650 actions that required federal, state, and local government agencies and contractors to award and allocate burdens, opportunities, and benefits based on race, sex, and gender identification.
Progressives defended these manifestly unconstitutional and unlawful actions by claiming that while the words of the 14th Amendment, federal civil rights statutes, and President Johnson’s executive order on equal employment opportunity prohibit the use of race in government actions, their true meaning was the opposite – that race and other innate characteristics must be used to achieve outcomes based on these characteristics.
The Biden administration also targeted people of faith, with abuses ranging from FBI infiltration of Catholic churches to weaponizing the FACE Act against pro-life Americans. And it adopted rules requiring that universities treat biological males who identify as women as actual women, and ended due process for any grievances filed for allegedly violating their rights, or in sexual harassment cases. Respondents were denied notice, the right to examine the complainant, or a right of appeal. The university investigator was permitted to serve as the hearing officer.
Progressives justified the administration’s attack on religion, female athletes, and due process as necessary to protect the rights of marginalized minorities.
Underscoring the left’s situational ethics, as the Biden administration embarked on a whole-of-government censorship enterprise to silence its critics, the ACLU abandoned its 100-year commitment to free speech, declaring that speech that denigrates marginalized groups can “inflict serious harms and is intended to and often will impede progress toward equality.”
Upon taking office for his second term, President Trump revoked Biden’s executive orders impacting race, sex, and gender. He issued orders prohibiting DEI, other race-based programs, and disparate impact in federal government hiring, promotion, and contracting; terminated federal employees hired for the Biden administration’s massive DEI apparatus; and ordered “appropriate action” to pressure K-12 schools into abandoning race-based disciplinary policies. He rescinded an executive order that required federal contractors to utilize affirmative action in their hiring practices.
Rejecting intersectionality, Trump issued orders tying federal funding to elimination of extreme gender ideology, proclaiming, “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality,” and protecting children from chemical and surgical mutilation – positions belatedly adopted by leading medical organizations. He also ordered the Department of Education to take all appropriate action to keep biological men out of women’s sports.
Trump directed federal agencies to improve security vetting for international students and to prioritize civil rights protections for Jewish students. He eliminated collection and publication of data used in a misguided effort to claim that environmental harms targeted minorities because manufacturing facilities are concentrated in lower-income neighborhoods, and he issued an order to pressure the Smithsonian Institution to restore balance to its depiction of American history.
The Justice Department’s Civil Rights Division under Harmeet Dhillon and Education Department under Linda McMahon launched enforcement actions against Ivy league universities to protect Jewish students and restore viewpoint diversity. The Justice Department also commenced investigations, filed and intervened in lawsuits, and reached settlements with public and private institutions to protect Americans of all backgrounds and faiths – just last week forcing Colorado to abandon a law that favors AI algorithms that promote “diversity.” It investigated the Biden administration’s weaponization of the FACE Act, issued an 882-page report exposing the abuses, and eliminated them. The Education Department ordered universities to bring back due process in university grievance procedures.
The left is vigorously fighting back. Universities have slyly rebranded DEI offices, legal challenges have been filed against Trump’s executive orders and related regulations, Democrat-appointed judges have issued injunctions, and Democratic Party officials have doubled down on racial and gender politics. For the most part, the administration has prevailed in lower courts or secured stays of adverse rulings pending appeals.
Some progressives support intersectionality, disparate impact, and DEI to harm straight white Americans. Many are so caught up in innate characteristics that they believe individual opportunity and fairness is determined at a group level, while other progressives delude themselves into believing they can choose winners without creating losers. The administration must hold firm against the left’s vitriolic counterattacks. As Donald Trump restores the American dream of equal opportunity, his challenge with just eight months until the probable loss of the Republican legislative majority is to create enduring change, rather than an interregnum in progressive rule.
This article was originally published by RealClearPolitics and made available via RealClearWire.
