By Max Eden and Josh Hammer | Newsweek
Close observers expect that on Day 1, President Donald Trump will reissue his executive order banning critical race theory throughout the federal government.
We eagerly anticipate that order, but we also fervently hope that within the first 100 days of his new term, President Trump will take a further action that would render it largely superfluous: publish a Department of Justice Office of Legal Counsel (OLC) memorandum explaining that the so-called “Diversity, Equity, and Inclusion” (DEI) regime isn’t just bad policy—it’s outright unconstitutional.
The argument could be bold, simple, and beautiful—not to mention legally unimpeachable.
In a single sentence: DEI amounts to racial stereotyping that violates the Equal Protection Clause of the 14th Amendment.
This holding is compelled by the Supreme Court‘s landmark 2023 affirmative action case, Students for Fair Admissions (SFFA) v. Harvard, and the precedents on which that case relies. In SFFA, Chief Justice John Roberts wrote that government “may never use race as a stereotype.”
States actors are not permitted to act on or in any way promote the doctrine that minorities “always (or even consistently) express some characteristic minority viewpoint on any issue” (citing Grutter v. Bollinger, a 2003 affirmative action case).
Roberts explained that the prohibition on racial stereotyping is “found throughout our Equal Protection Clause jurisprudence more generally.”
The assumption that people of “a particular race, because of their race, think alike” is “offensive and demeaning” (citing Miller v. Johnson, a 1995 congressional redistricting case.) Such racial stereotyping “can only ’cause[] continued hurt and injury'” (citing Edmonson v. Leesville Concrete Co., a 1991 case on peremptory challenges).
And in his SFFA concurrence, Justice Clarence Thomas further explained that “as the Court’s opinions in these cases make clear, all racial stereotypes harm and demean individuals … [by] lumping people together … based on assumed inherited or ancestral traits.”
In American public life, DEI is nothing but the promotion of racial stereotypes through government speech.
“Whiteness.” “Blackness.” “White privilege.” “White fragility.” “Indigenous ways of knowing.” It’s all stereotyping.
Private citizens have a First Amendment right to speak of these things, but the government is prohibited by the 14th Amendment from promoting these stereotypes in its speech.
A Trump OLC memo laying this out in clear terms would be a game changer, both politically and legally.
Actually, it would be more than a game changer: It would be game over. It would utterly destroy DEI in America.
From a purely political perspective, such a OLC memo offers an order of magnitude upgrade in its rhetorical power.
Years ago, the Left tried to gain the moral high ground on race issues by framing its noxious racial Marxism as “anti-racism.”
Then, Manhattan Institute senior fellow Chris Rufo cannily reframed the whole debate as being about “critical race theory” (CRT).
Since then, conservatives—joined by myriad anti-woke liberals—have been chipping away with increasing success against the DEI public brand and administrative regime.
Now, read this again and let it sink in: “DEI is unconstitutional racial stereotyping that violates the 14th Amendment’s Equal Protection Clause.”
Americans hate stereotyping. We love the 14th Amendment. We love equal protection. And if something is unconstitutional, it’s by definition above political debate anyway.
But the administrative implications are even more powerful than the political ones. States can’t provide less protection to their citizens than the Constitution provides.
Incoming Trump Secretary of Education Linda McMahon won’t need to go 10 rounds in the ring to uproot DEI from California’s schools.
The state of California would be obligated to do that itself if Trump, for example, conditions every penny of allocated federal funding to the Golden State on California accepting the OLC’s legal position that DEI is unconstitutional racial stereotyping.
As Luca Brasi from The Godfather might have put it, that is an offer California Gov. Gavin Newsom can’t refuse.
Actually, it’s even better than that: California parents can sidestep Newsom by forcing their school districts to drop DEI.
It’s already obvious that teaching the purported evils of “whiteness” creates a racially hostile environment under Title VI of the Civil Rights Act. Problem is, many parents might not be familiar enough with Title VI, a mid-20th century statute, to think to sue under it.
But most American parents know that their kids have basic constitutional rights. And litigators know they can recover attorney’s fees for 14th Amendment claims under 42 U.S.C. Section 1983.
If school districts across the country faced tens, if not hundreds, of thousands of dollars in liability for contracting with DEI consultants like Courageous Conversations or utilizing CRT-infused materials like the Southern Poverty Law Center’s “Learning for Justice,” they would stop doing it.
If rogue leftist teachers spouting off racial stereotypes in class were to come with a similar price tag, we would see the death of woke classroom indoctrination basically overnight.
The implications for higher education would be similarly profound. No more mandatory freshman orientation DEI re-education, for one.
A more interesting question, which Secretary McMahon’s lawyers could sort out, is whether universities would still be permitted to mandate DEI-infused courses as graduation requirements—as most universities currently do.
We tend to think they couldn’t. This would defang the college indoctrinators.
The dirty secret is that students don’t want to take courses in neo-Marxist nonsense.
And if they’re not forced to do so via curricular requirements, leftist professors would lose both their students and their clout.
Entire DEI departments and administrators would have to close shop.
To be sure, universities could just try to mischievously rename their departments and retitle their staffers. But because DEI is racial stereotyping, and racial stereotyping is prohibited, they could not actually keep doing DEI. And students and parents can sue to enforce that.
During the height of the Biden administration’s campaign to infuse every aspect of the federal government with DEI, our friend (and hopefully future Supreme Court Justice) Judge James C. Ho sounded the alarm over the rise of the “woke Constitution.”
Fortunately for the American people, the actual United States Constitution is the single greatest weapon against wokeness.
And a proper interpretation and enforcement of the 14th Amendment can—and we trust will—relegate DEI to the ash heap of history.
Max Eden is a senior fellow at the American Enterprise Institute. Josh Hammer is Newsweek senior editor-at-large, host of “The Josh Hammer Show,” and senior counsel for the Article III Project.
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