Comment: AG Bondi’s DEI memo more messaging than lawsuit threat

By Noah Feldman / Bloomberg Opinion

On her first day in office, Attorney General Pam Bondi issued a memo calling for a report on how the Department of Justice can target big companies’ diversity, equity and inclusion programs.

The memo is unlikely to generate a significant number of lawsuits against real-world companies. But it will speed up the already-underway process of corporations abandoning or at least re-branding their DEI efforts.

Bondi’s DEI memo is one of a raft of opening day salvos on subjects like criminal investigations of lawyers who criminally investigated President Trump, holding up federal grants for so-called “sanctuary cities” that refuse to cooperate with immigration authorities and firing Justice Department lawyers who refuse to sign briefs or work on cases they consider unlawful or immoral. All focus on issues Trump campaigned on. Only the DEI memo, however, directly follows a legal-cultural process triggered by the Supreme Court.

The Supreme Court’s role in the war on DEI began in June 2023, when the justices decided the landmark SFFA v. Harvard case. In that 6-3 decision, the court held it was unconstitutional and unlawful for universities to use racial diversity as a basis for admissions under Title VI of the Civil Rights Act of 1964.

Technically, the SFFA case applies only to educational institutions that are barred from discriminating under Title VI. However, the core logic of the decision — that the Constitution and civil rights laws require colorblindness — can easily be extended to workplaces barred from discriminating under Title VII of the same law.

For this reason, it’s not at all surprising that the Bondi memo simply assumes that companies are not allowed to use racial diversity as a rationale for employment decisions: That’s the standard conservative extension of the SFFA precedent. Indeed, in October 2022, long before the SFFA decision came down, I predicted that it would eventually be applied to the employment context.

However, as I also explained at the time, even companies proud of their DEI efforts are unlikely to acknowledge making specific employment decisions based on seeking to achieve racial diversity. Legally speaking, Title VII outlaws discrimination in employment decisions, not pro-diversity rhetoric. Even Bondi’s memo acknowledges that legal reality by targeting “illegal discrimination and preferences.” Any attempt to bring civil enforcement actions based on corporate speech alone would violate the free-speech rights of the companies under the First Amendment.

That’s why the investigations that Bondi’s memo foreshadows seem unlikely to lead to many actual lawsuits. A successful civil suit against a DEI program would have to prove that a company was making specific employment decisions on the basis of race or favoring employees in the workplace based on their race, sex, sexual orientation, transgender status, or other characteristics protected by Title VII. That would be a very difficult case to make in the real world.

Therefore, the evident purpose of the memo is to advance the culture war against DEI, not to generate a meaningful body of litigation.

That cultural objective is also probably why the memo provocatively asks Justice Department employees to come up with “proposals for criminal investigations.” I can’t think of a realistic scenario in which DEI, even if determined to involve unlawful discrimination in violation of Title VII, would violate a federal criminal statute. The closest I can come is to imagine an employer who willfully lies to federal investigators about a DEI-related matter. It’s a crime to lie to a federal investigator. But it would be a strange decision to do so, provided there was even anything to lie about.

So, the mention of criminal investigations is almost certainly intended to further panic corporations to encourage them to abandon DEI programs that aren’t actually in violation of civil rights laws. Indeed, the Bondi memo doesn’t even bother to suggest what kinds of criminal charges could possibly arise in connection with DEI.

Therefore, legally speaking, the Bondi memo and any proposals that follow from it are likely to have limited effect. As cultural propaganda, however, the memo incentivizes companies to stop saying publicly that they value DEI. When the Supreme Court struck down the diversity rationale, it tarnished the word “diversity” in a way that was already going to make it difficult for corporations to sustain DEI programs. The Trump administration is making it harder still.

Back in 2022, I predicted that once the Supreme Court ruled in the SFFA case, “every chief diversity officer in the country will need a new job title; and perhaps a new job.” That’s how things have in fact played out.

Some companies may desire to resist and keep their perfectly legal DEI programs in place. That will only make sense, however, if there is a constituency on the left that wants them, too. There is some early indication that the left may be preparing to abandon DEI in the workplace. Some voices on the left are saying DEI was never much more than a tool for corporations to distract attention from anti-union activity. If that view prevails on the left, DEI will have little political utility for any company since it will be disliked by right and left alike.

I’ve long argued that diversity entered public discourse only gradually as a result of the Supreme Court blessing it as a permissible rationale for affirmative action in college admissions; and that it would, therefore, gradually fade away when the Supreme Court withdrew its blessing. The Trump administration is speeding up the process; but it was the conservative justices who made it all but inevitable.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”