Updates on Executive Order: Ending Illegal Discrimination and Restoring Merit-Based Opportunity

Here are the recent updates and developments related to the Executive Order "ENDING ILLEGAL DISCRIMINATION AND RESTORING MERIT-BASED OPPORTUNITY," signed on January 21, 2025:

• January 21, 2025: Executive Order (EO) is signed, officially titled "ENDING ILLEGAL DISCRIMINATION AND RESTORING MERIT-BASED OPPORTUNITY." This order revokes Executive Order 11246, which established affirmative action requirements for federal contractors, effectively ending affirmative action for women and minorities in federal contracting.

• Immediately Following January 21, 2025 (Implementation):

  • Federal contractors are given a 90-day period to continue complying with the regulatory framework in effect on January 21, 2025.
  • The Department of Labor's Employment and Training Administration (DOL/ETA) begins notifying recipients of federal financial assistance about changes to award terms, specifically prohibiting activities described in the Executive Order related to DEI programs.

• Within 120 Days of January 21, 2025 (Implementation & Reporting):

  • The Attorney General, in consultation with heads of relevant agencies and the Director of the Office of Management and Budget (OMB), is mandated to submit a report to the Assistant to the President for Domestic Policy. This report will include recommendations for:
    • Enforcing federal civil rights laws.
    • Encouraging the private sector to eliminate "illegal discrimination and preferences," including Diversity, Equity, and Inclusion (DEI) programs.

• Ongoing and Anticipated Developments (Legal Challenges & Public Response):

  • High Likelihood of Legal Challenges: The Executive Order is widely expected to face legal challenges due to its broad scope and concerns about potential discriminatory effects. Key legal concerns include:
    • Contestation of the order's characterization of DEI programs as inherently illegal.
    • Constitutional concerns, particularly related to the Equal Protection Clause of the Fourteenth Amendment.
    • Concerns that the order may chill protected expression related to diversity and inclusion advocacy.
  • Potential for Reduced Diversity: Experts anticipate the order may lead to a reduction in diversity across government and private-sector employment, as well as within related initiatives.
  • Risk of More Exclusionary Environments: Termination of DEI programs as a result of the EO is predicted to potentially create more exclusionary environments within the United States.
  • Varied Private Sector Response & Potential Disruption: The order's encouragement to eliminate DEI programs in the private sector is expected to result in a range of responses from businesses, potentially leading to social and economic disruption.
  • Destabilization of Higher Education: Concerns exist that the Executive Order could destabilize higher education institutions, potentially resulting in less diverse student bodies.

• Expert Analysis and Commentary:

  • Initial expert analysis highlights the EO as a significant shift in federal policy, reversing decades of precedent related to affirmative action and diversity initiatives, especially in federal contracting.
  • Commentary emphasizes the EO's assertion that employers and institutions, including the federal government and universities, have adopted "dangerous, demeaning, and immoral race- and sex-based preferences" under the guise of DEI programs.
  • Broader concerns are raised about the order's potential to disproportionately affect marginalized groups who have historically benefited from affirmative action and diversity initiatives. It is seen by some as an overreach of federal power into private sector operations.