The Intimidation is the Point
By Samuel Bagenstos
Today, President Trump issued an Executive Order on “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The title is Orwellian. The target of the order is DEI programs–programs that, for whatever their faults, tend to aim at promoting merit-based opportunity by overcoming discrimination that stands as a barrier to it.
As with all things Trump 2.0, there’s a gratuitous meanness to the order. It repeals Executive Order 11,246, which prohibits discrimination by federal contractors and has been a centerpiece of civil rights enforcement since President Johnson signed it in 1965. It comes at the same time as the truly petty order by Trump’s Office of Personnel Management to put all federal DEI staff on leave by the end of the day today and to develop a plan by the end of next week to lay them off.
But there’s an even more pernicious aspect to the new anti-DEI EO. It will be used–and appears to have been carefully designed to be used–to intimidate and harass private institutions that are outspoken in their support for a robust vision of equity. And it will be used to encourage those institutions to silence their employees who speak out in favor of such a vision (and, on university campuses, to silence those who speak out on other matters).
Section 3(b)(iv) requires the head of each agency to include in every contract or grant a term requiring the contractor or grantee "to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code [the False Claims Act]," as well as a term requiring the contractor or grantee "to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws."
This sounds good. Who could object to requiring those who receive federal money to certify that they comply with federal civil rights laws? But the False Claims Act authorizes lawsuits by private parties for treble damages. So an ideologically motivated lawyer could go after a big institution that speaks up on behalf of a robust vision of equity (or doesn’t discipline employees who speak up on behalf of such a vision), claim that the institution is promoting DEI in a “discriminatory” way (or is allowing speech on its premises that constitutes discriminatory harassment under federal law), and seek damages in the amount of three times all the federal funds the entity receives. Universities in particular rely heavily on federal funds, so they are likely to be especially prime targets for this kind of lawsuit.
Now, a university or other entity sued in this kind of case will have defenses. They’ll say (probably correctly) that their DEI programs don’t violate antidiscrimination laws, or that the speech permitted on campus or in the workplace doesn’t violate those laws. They’ll have arguments that the plaintiffs haven’t met key requirements of the False Claims Act, and that in any event the total amount of federal funds received is not the proper basis for calculating damages.
But lots of these arguments will take time and expense to litigate, while the threat of an enormous penalty hangs over the institution’s head. And if the university or other entity draws the wrong federal judge, things could go very badly for it. As we’ve seen from the False Claims Act suit against Planned Parenthood, which is in Judge Kacsmaryk’s court, these kinds of cases can pose an existential threat to even large nonprofit organizations.
Most universities and other institutions will want to avoid being targeted for such a suit. They’ll have a strong incentive to back off any robust statements they’re making about equity, and they’ll stop employees (and, in the case of universities, students) from speaking out in ways that draw attention to them. It’s hard to believe that’s not part of the point of this provision of the EO.
Section 4 of the EO compounds the problem–and highlights the pernicious intent here. That provision requires the Attorney General to provide the President's Domestic Policy Advisor with a list of specific targets for enforcement action and public shaming. The AG, working with the heads of other relevant agencies, must submit a report with a "strategic enforcement plan identifying," among other things:
"[k]ey sectors of concern within each agency’s jurisdiction";
"[t]he most egregious and discriminatory DEI practitioners in each sector of concern"; and
a plan under which "each agency shall identify up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars."
After Nixon’s abuses–including crafting an “enemies list” and his corrupt settlement of an antitrust suit against ITT after the conglomerate pledged $400,000 for the 1972 Republican Convention–President Ford’s Attorney General Edward Levi established a norm keeping the White House out of decisions about which people and entities should be the target of federal enforcement. Although that norm may have been breached in particular cases, it has largely stood–and served as an important protection against the abusive weaponization of government’s coercive tools against those who oppose the party in power. (I can tell you, from four years serving in the previous Administration, that Attorney General Garland was especially aggressive in defending that norm.)
The new EO drops a 2,000-pound bomb on that norm. It orders the Attorney General to provide the Domestic Policy Advisor–one of the highest ranking officials in the White House–with a list of enforcement targets.
And the list of “the most egregious” entities will do much more than provide a vehicle for the White House to identify folks for federal enforcement. That list will surely be published, and it will provide a target list for ideological warriors in the private sector, and among conservative state Attorneys General, for False Claims Act suits and other legal actions and harassment.
Again, the intimidation seems to be the point–to discourage institutions from speaking up in favor of a robust vision of equity, and to encourage them to crack down on employees and students who speak up, out of fear that they'll get on the target list of the White House and allied interests outside of the federal government. We can have legitimate arguments about the value of DEI programming. (I have plenty of concerns with how DEI programs are implemented, although they're very different concerns from those that animate this order.) But the new EO reads as much as an effort to silence especially prominent voices promoting a particular point of view about equity–and to encourage universities to crack down on certain speech on campus–as it is about anything else.
This order is especially chilling because it comes at the same time as Harvard's decision (as part of the settlement of a private lawsuit) to define certain anti-Israel speech—which, agree or disagree with the speech on the merits, is a core expression of political opinion—as antisemitic in the context of disciplinary proceedings. For all of the right wing’s complaints about “political correctness,” the irony is that it is actions like today’s EO that are pressuring institutions into avoiding and censoring expression of “incorrect” views.