01-31-2025

Ending Illegal Discrimination and Restoring Merit-Based Opportunity

Executive OrderView the Original .pdf

The 1-Minute Brief

What: Executive Order 14173, titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," revokes previous executive orders that established and supported affirmative action and Diversity, Equity, and Inclusion (DEI) programs within the federal government and for federal contractors. It directs federal agencies to terminate all DEI-related activities and mandates that federal contractors cease affirmative action practices.

Money: Proponents of the order project significant cost savings. A White House report indicated savings of $2.3 billion from cutting DEI programs across the federal government, with the largest savings coming from the Department of Education, the EPA, and the Department of Labor. Conversely, critics argue that dismantling DEI could lead to increased costs from discrimination lawsuits and that compliance reviews for the new requirements could cost millions. For example, one analysis estimated that a major university could face $1.8–$2.4 million in first-year review costs to comply with the new certifications.

Your Impact: The order will most directly affect federal government employees and individuals working for companies with federal contracts by changing hiring, promotion, and training programs. It eliminates requirements for employers to take "affirmative action" and removes many diversity and inclusion initiatives. This could alter the criteria used for employment and advancement in these sectors.

Status: Issued by the President on January 21, 2025, and published in the Federal Register on January 31, 2025.


What's Actually in the Bill

Executive Order 14173 is a directive aimed at fundamentally altering the federal government's approach to diversity and equal opportunity. It operates on the stated premise that many current Diversity, Equity, and Inclusion (DEI) initiatives constitute illegal discrimination based on race and sex. The order mandates the termination of these programs within all executive departments and agencies and extends these changes to entities that do business with the federal government.

Core Provisions:

  • Revokes Previous Orders: The order explicitly revokes several key executive actions, most notably Executive Order 11246 from 1965, which has served as the foundation for federal contractors' affirmative action obligations for decades.
  • Cease and Desist for OFCCP: It directs the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) to immediately stop promoting "diversity," holding contractors responsible for taking "affirmative action," or encouraging workforce balancing based on race, sex, or other protected categories.
  • New Contract Requirements: Federal agencies must now include terms in all contracts and grants requiring the recipient to certify they do not operate any DEI programs that violate federal anti-discrimination laws. This certification is material to payment, exposing contractors to potential liability under the False Claims Act for non-compliance.
  • Private Sector Scrutiny: The Attorney General is tasked, within 120 days, with creating a strategic plan to combat "illegal DEI" in the private sector. This includes identifying key sectors of concern and pinpointing "egregious and discriminatory DEI practitioners" for potential civil investigations.
  • Higher Education Guidance: The Attorney General and Secretary of Education are required to issue guidance within 120 days to educational institutions on how to comply with the Supreme Court's 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which curtailed the use of race in college admissions.
  • Grace Period: Federal contractors are given 90 days from the date of the order to wind down their existing affirmative action programs and align with the new requirements.

Stated Purpose (from the Sponsors):

The order's text claims its purpose is to enforce federal civil-rights laws for all Americans by ending what it describes as "dangerous, demeaning, and immoral race- and sex-based preferences."

  1. To terminate all discriminatory and illegal preferences, mandates, and policies within the Federal Government.
  2. To ensure that the values of hard work, excellence, and individual achievement are prioritized over what it calls an "unlawful, corrosive, and pernicious identity-based spoils system."
  3. To combat illegal private-sector DEI preferences and mandates.

Key Facts:

Affected Sectors: Federal Government, Defense, Technology, Healthcare, Aviation, Law Enforcement, Higher Education, and any other industry with federal contractors or grantees.
Timeline: Key actions and reports are mandated within 90 and 120 days of the January 21, 2025, order.
Scope: The order has a government-wide scope, directly impacts all federal contractors and grant recipients, and signals an enforcement focus on the broader private sector.


The Backstory: How We Got Here

Timeline of Events:

The Civil Rights Era and Birth of Affirmative Action (1960s):

The term "affirmative action" was first formally used in President John F. Kennedy's 1961 Executive Order 10925. This order required government contractors to take "affirmative action" to ensure employees were hired and treated without regard to race, creed, color, or national origin. This was expanded upon by President Lyndon B. Johnson's Executive Order 11246 in 1965, which became the cornerstone of affirmative action policy for federal contractors, requiring them to actively work to eliminate discrimination. These orders were created in the context of the Civil Rights Movement to address systemic discrimination and a lack of equal opportunity.

Evolution and Legal Challenges (1970s-2000s):

Throughout the following decades, affirmative action faced numerous legal challenges. The Supreme Court's 1978 Regents of the University of California v. Bakke decision struck down racial quotas but allowed race to be considered as one factor among many in college admissions. This established a precedent that was later reaffirmed in the 2003 Grutter v. Bollinger case. Meanwhile, the policies became a political flashpoint, with opponents arguing they led to "reverse discrimination."

The DEI Shift and Recent Reversal (2010s-Present):

In recent years, the focus expanded from affirmative action to the broader concept of Diversity, Equity, and Inclusion (DEI). This shift was met with intense political opposition from conservatives, who argue that DEI programs are divisive, discriminatory, and prioritize identity over merit. This sentiment culminated in the Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard, which ruled that race-conscious admissions programs violate the Constitution's Equal Protection Clause, effectively ending affirmative action in higher education.

Why Now? The Political Calculus:

  • Landmark Supreme Court Decision: The Students for Fair Admissions ruling created a new legal landscape and provided significant momentum for opponents of race-conscious policies. This executive order is a direct extension of that ruling's logic into the realms of federal employment and contracting.
  • Conservative Political Priority: Ending what is often termed "woke" or "divisive" DEI initiatives has become a core objective for many Republicans, who argue these programs are a form of illegal discrimination.
  • Fulfilling Campaign Promises: The executive order aligns with campaign promises to dismantle federal DEI programs and promote a "merit-based" system.

Your Real-World Impact

The Direct Answer: This directly affects federal employees and those working for companies with federal contracts, and it is intended to influence employment practices across the entire private sector.

What Could Change for You:

Potential Benefits:

  • Proponents argue the order ensures hiring and promotion are based solely on individual merit, skills, and qualifications, eliminating what they see as unfair preferences for certain groups.
  • Some may find that workplace trainings and internal corporate communications shift away from topics of systemic inequality and identity.
  • It could reduce the compliance burden for federal contractors who no longer need to maintain affirmative action plans.

Possible Disruptions or Costs:

Short-term (First Year):

  • Companies may face new costs and administrative burdens to review their existing programs and certify compliance with the order's vague definition of "illegal DEI."
  • Employees working in DEI-focused roles may face job insecurity or elimination.
  • There may be confusion and legal uncertainty as companies navigate the new requirements and the threat of False Claims Act liability.

Long-term:

  • The composition of the workforce in federal agencies and contractor companies could change over time.
  • Opponents argue it could roll back decades of progress in creating diverse and inclusive workplaces and may lead to more instances of unchecked bias in hiring and promotion.
  • Companies could face an increase in discrimination lawsuits if they dismantle programs designed to prevent such issues.

Who's Most Affected:

Primary Groups: Federal government workers, employees of federal contractors (in sectors like defense, tech, and consulting), and DEI professionals.
Secondary Groups: Women, racial and ethnic minorities, and other groups historically supported by affirmative action and DEI programs. Job applicants in all major industries, as private companies may alter their hiring practices in response to the order.
Regional Impact: The impact will be felt nationwide but may be most concentrated in regions with a large federal workforce, such as the Washington, D.C. metropolitan area.

Bottom Line: The order aims to fundamentally shift workplace policies from a focus on group representation and equity to one based on a specific definition of individual merit, which will change how many large employers hire, train, and promote.


Where the Parties Stand

Republican Position: "Restoring Merit, Ending Discrimination"

Core Stance: The party strongly supports the executive order, viewing DEI and affirmative action as discriminatory, divisive, and un-American.

Their Arguments:

  • ✓ DEI programs constitute "reverse-racism" against qualified individuals, particularly white men.
  • ✓ Hiring and promotion should be based exclusively on merit, skill, and individual achievement, not group identity.
  • ✓ Taxpayer money should not be used to fund divisive DEI initiatives in government, the military, or education.
  • ⚠️ Some business-focused Republicans may have reservations about the government dictating private sector HR policies, but this concern is largely overshadowed by opposition to DEI.
  • ✗ They actively oppose the principles of "equity" (seeking equal outcomes) in favor of "equality" (providing equal opportunity).

Legislative Strategy: Use executive authority to dismantle DEI infrastructure within the federal government and use the power of federal contracts and funding to pressure the private sector and educational institutions to follow suit.

Democratic Position: "Advancing Equity and Opportunity"

Core Stance: The party generally opposes the executive order, arguing that DEI and affirmative action are necessary tools to counteract systemic inequality and ensure fairness.

Their Arguments:

  • ✓ DEI initiatives are crucial for leveling a historically uneven playing field and addressing systemic barriers faced by marginalized groups.
  • ✓ Diverse and inclusive workplaces are stronger, more innovative, and good for business and democracy.
  • ✓ Eliminating these programs ignores the real costs of systemic inequities in health, wealth, and education that persist in the country.
  • ⚠️ Some Democrats acknowledge that the messaging around DEI can be alienating to certain voters and believe the framework could be improved to focus more on universal benefits and economic opportunity.
  • ✗ They actively oppose the idea that American society is a pure meritocracy and that discrimination is no longer a significant barrier to advancement.

Legislative Strategy: Push back against the executive order through public statements, congressional oversight, and potentially introducing legislation to codify diversity protections. They would likely make reversing this order a priority for a future Democratic administration.


Constitutional Check

The Verdict: ⚠️ Questionable

Basis of Authority:

The executive order cites the President's authority under the Constitution and the laws of the United States. Historically, presidents have used their Article II executive power to manage the federal government and the Federal Property and Administrative Services Act of 1949 (FPASA) to set procurement policies for federal contractors, arguing such directives promote "economy" and "efficiency."

Relevant Portion of the Constitution (Article II, Section 1): "The executive Power shall be vested in a President of the United States of America."
Relevant Portion of the Constitution (Article II, Section 3): "...he shall take Care that the Laws be faithfully executed..."

Constitutional Implications:

[Presidential Authority]: The order's directives to federal agencies are generally seen as a valid exercise of the President's power as head of the executive branch. However, extending this authority to regulate the internal employment practices of private federal contractors is more controversial.
[Precedent]: Courts have given presidents latitude in setting conditions for federal contracts. However, in Kentucky v. Biden (2022), the Sixth Circuit ruled that the FPASA did not grant the president unlimited authority to impose mandates (in that case, related to vaccines) on contractors that are not sufficiently related to the government's goal of an economical and efficient procurement system. This precedent could be used to challenge this order.
[Federalism]: The order does not directly command state governments to act, but it uses the leverage of federal funding and contracting to influence the behavior of state agencies, universities, and private entities, which raises questions about federal overreach into areas traditionally managed at the state and local level.

Potential Legal Challenges:

Legal challenges are highly likely.

  • Exceeding Presidential Authority: Opponents will likely argue the president does not have the authority under the Constitution or FPASA to dictate broad social and employment policies for private companies, even if they are contractors.
  • Vagueness and Due Process: The term "illegal DEI" is not clearly defined in the order, which could lead to challenges that the certification requirements are unconstitutionally vague and expose companies to liability without clear standards.
  • First Amendment: While the order states it does not prohibit First Amendment-protected speech, critics may argue that pressuring private companies and universities to eliminate certain types of training and programs has a chilling effect on speech and academic freedom.
  • Groups Likely to Sue: Civil rights organizations like the ACLU and NAACP, advocacy groups that support diversity, and potentially federal contractors caught between the new requirements and their own corporate values or state laws.

Your Action Options

TO SUPPORT THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I urge [Rep./Sen. Name] to support Executive Order 14173 and efforts to end DEI programs in government."

30-Minute Deep Dive:

  • Write a Detailed Email: Contact your representatives and members of the House and Senate Judiciary Committees to express support for turning the executive order's principles into permanent law.
  • Join an Organization: Look into groups that challenge affirmative action and DEI policies, such as the American Alliance for Equal Rights.

TO OPPOSE THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I urge [Rep./Sen. Name] to oppose Executive Order 14173 and speak out against the dismantling of diversity and inclusion programs."

30-Minute Deep Dive:

  • Write a Letter to the Editor: Submit a letter to your local newspaper arguing that DEI programs are valuable for the community and that the executive order is a step backward.
  • Join an Organization: Groups like the NAACP, the American Civil Liberties Union (ACLU), and the American Association for Access, Equity, and Diversity (AAAED) are actively working to protect and advocate for diversity and inclusion initiatives.