President Trump yesterday issued an executive order “ending illegal discrimination and restoring merit-based opportunity.” On first read, the executive order strikes me as outstanding. Here’s the White House’s explanation of it. Here’s my own section-by-section guide.
Section 1. Federal civil-rights laws prohibit discrimination based on race or sex. But “influential institutions of American society, including the Federal Government, major corporations, financial institutions, the medical industry, large commercial airlines, law enforcement agencies, and institutions of higher education have adopted and actively use dangerous, demeaning, and immoral race- and sex-based preferences under the guise” of DEI.
Section 2. “I therefore order all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements. I further order all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.”
Section 3. Revokes a slew of previous presidential orders, and requires that federal contractors not discriminate in violation of federal civil-rights laws.
- Note that the order, in specifying that federal contracts state that the term requiring nondiscrimination “is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31,” is laying the predicate for massive False Claims Act liability for violators. Other recipients of federal funds (e.g., universities) will surely face similar exposure. It’s an excellent time for attorneys to develop a practice representing False Claims Act plaintiffs.
Section 4. “Encourag[es]” the private sector to end illegal discrimination. Directs Attorney General to submit a report within 120 days that contains a strategic enforcement plan that
- identifies the “most egregious and discriminatory DEI practitioners in each sector of concern”;
- identifies “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”; and
- proposes litigation, regulatory action, and other measures to end illegal DEI discrimination.
Section 5. Within 120 days, the Attorney General and the Secretary of Education shall issue guidance to all schools that receive federal funds on “the measures and practices required to comply with” the Supreme Court’s decision (Students for Fair Admissions v. Harvard) barring racial preferences in admissions.