Dismantling DEI: ACLJ Files Amicus Brief in Federal Appeals Court To Support Trump’s Executive Orders To End Racial Discrimination in Federal Programs

Today the ACLJ filed an important amicus brief in the United States Court of Appeals for the Fourth Circuit, supporting the Trump Administration’s efforts to end racial discrimination in federal government contracting and grant programs. The case, National Association of Diversity Officers in Higher Education v. Trump, challenges two Executive orders issued by President Trump. These orders aim to dismantle systemic racial discrimination within federal grant and contract processes by requiring contractors to certify they are not engaging in illegal racial discrimination. At the core of our Constitution and our law is the guarantee of equality and the prohibition of all forms of racial discrimination.

On January 20, President Trump issued Executive Order 14,151, titled “Ending Radical and Wasteful Government DEI Program and Preferencing,” which sought to eliminate what the Administration described as “illegal and immoral discrimination programs” operating under the name of “diversity, equity, and inclusion (DEI).” The order directed agency heads to terminate “equity-related” grants or contracts “to the maximum extent allowed by law.”

The following day, the President issued Executive Order 14,173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which requires federal contractors and grant recipients to certify that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

Upholding Constitutional Values

At the ACLJ, we have always fought against racial discrimination in all its forms. Our nation was founded on the self-evident proposition that all men are created equal, and the Constitution guarantees equality before the law for all Americans. The Executive orders in question simply reinforce this foundational principle.

The U.S. Supreme Court has repeatedly rejected the notion that racial discrimination can be remedied through more racial discrimination. Recently, in the landmark Students for Fair Admissions v. Harvard decision, the Court made it crystal clear that racial classifications – whether packaged as “affirmative action,” “equity,” or “diversity” – are fundamentally incompatible with the Equal Protection Clause of the Fourteenth Amendment. The ACLJ filed an amicus brief in that case, and the Court’s decision echoed much of our arguments.

In our amicus brief here, we argue that racial discrimination is a fundamental violation of constitutional norms. Racial affirmative action – even when done in the name of “diversity” – is itself race-based discrimination and unconstitutional. In Students for Fair Admissions, the Court specifically rejected the argument that racial classifications can be justified through appeals to diversity, equity, or inclusion.

Justice Thomas explained:

The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity. Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors and identities and see each other for what we truly are: individuals with unique thoughts, perspectives, and goals, but with equal dignity and equal rights under the law.

What the Executive Orders Actually Do

Despite claims by the plaintiffs, Trump’s Executive orders do not restrict speech or attack ideological diversity. They simply require federal contractors to certify that they are not engaging in illegal racial discrimination – something already prohibited under federal law.

The district court erroneously granted an injunction against these orders, but our brief argues that the plaintiffs have no likelihood of success on the merits:

1. Racial Discrimination Violates Constitutional Norms

We detail how the Supreme Court has consistently held that racial discrimination is invidious in all contexts and contrary to the Equal Protection Clause. Drawing on Justice Harlan’s famous dissent in Plessy v. Ferguson, we argue that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

2. Rationales for Racial Classification Fail Strict Scrutiny

The brief explains how the Supreme Court has “repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action.” We cite multiple precedents where the Supreme Court rejected the argument that “past societal discrimination” could justify racial preferences in government contracting.

3. Even “Pure” Motives Cannot Justify Racial Discrimination

The ACLJ brief directly takes on the argument that good intentions behind DEI programs make them constitutional. The Supreme Court has made it very clear that neither diversity, equity, nor inclusion can justify racial discrimination. DEI or not, the Court is clear that the Equal Protection Clause’s “central mandate is racial neutrality in governmental decisionmaking.”

4. The Executive Orders Do Not Violate the First Amendment

Perhaps most crucially, we explain why the Executive orders do not constitute viewpoint discrimination. The orders target illegal conduct – racial discrimination – not protected speech or viewpoints. Contractors remain free to advocate for DEI principles; they simply cannot implement those principles through racially discriminatory practices.

A Compelling Government Interest of the Highest Order

Throughout our brief, we emphasize that preventing racial discrimination is a compelling government interest of the highest constitutional order. As the Supreme Court noted in Burwell v. Hobby Lobby Stores, Inc., “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

Conclusion

The ACLJ’s amicus brief concludes by urging the Fourth Circuit to grant the government’s motion for a stay pending appeal, allowing these important Executive orders to take effect. As Chief Justice Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

We believe these Executive orders represent a recommitment to the constitutional principle that government must treat citizens as individuals, not as racial archetypes. True equality comes from recognizing the inherent dignity of each person, not from racial categorization under any name.

The ACLJ will continue to stand for equal protection under the law for all Americans. We firmly believe that racial discrimination should not be tolerated under any disguise, including the guise of DEI programs.

UPDATE 03.15.2025: The U.S. Court of Appeals for the Fourth Circuit just issued a unanimous ruling granting the stay, agreeing with our amicus brief, and allowing these Executive orders to go into effect. As Judge Rushing explained in her concurrence: “[T]he government is likely to succeed in demonstrating that the challenged provisions of the Executive Orders—all of which are directives from the President to his officers—do not violate the First or Fifth Amendments.” Now that the Judge’s order has been stayed, the President can continue to carry out his authority to curtail illegal racial discrimination disguised as DEI.