As the Administration’s focus on eliminating DEI practices continues, many hoped that the Attorney General’s May 21 report required under Executive Order 14173 would provide additional guidance on what the Administration considers “illegal DEI.”
Reaching into private sector: While the government can create rules for private entities’ access to federal contracts and grants and enforce the law, it cannot otherwise demand specific policies within private sector companies. The Executive Order, however, required the Attorney General to work with federal agencies to “identify the most egregious and discriminatory DEI practitioners…”
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A notable part of this requirement was a highly anticipated identification of up to “nine potential civil compliance investigations of publicly traded corporations” and other private organizations including foundations, nonprofits, bar and medical associations and institutions of higher education.
No legal clarity in sight: Despite the potential utility for corporations and other entities, the Attorney General report has not been made public and, according to the terms of the EO, is not required to be public.
Continued enforcement: Actions to roll back DEI policies have continued:
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The Administration created a new Civil Rights Fraud Initiative designed to use the False Claims Act to pursue recipients of federal funds that knowingly violate federal civil rights laws.
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The Administration has also targeted Harvard and other institutions of higher education seeking changes to their DEI initiatives.
What to watch: The Administration is achieving many of its objectives by allowing uncertainty to encourage voluntary revisions in DEI programs.
