Using the First Amendment to Uphold DEI Initiatives

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), the Supreme Court all but ended affirmative action and held, inter alia, that race-conscious admissions policies in higher education violate the Equal Protection Clause of the Fourteenth Amendment. Through Executive Order 14173, President Trump signaled his intention to enforce, and possibly extend, the Harvard decision throughout the private sector by directing the Attorney General to take “appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI [diversity, equity, and inclusion].”

On Feb. 5, the Attorney General issued a memorandum to all DOJ employees advising that the Civil Rights Division would issue a report consistent with President Trump’s Executive Order by March 1, which will address a number of issues, including proposals for criminal investigations, civil compliance investigations, regulatory actions, and other strategies to end DEI preferences in the private sector.

Executive Order 14173 was recently challenged by a group of university professors/diversity officers, restaurant workers, and local government officials on several bases, including that it violates Free Speech protections under the First Amendment. In the lawsuit filed in the United States District Court for the District of Maryland, the plaintiffs allege that DEI principles “are foundational” and “deeply embedded” in their “missions, programs, and work in service of students, research and academic inquiry, restaurant workers, and everyday citizens.” The plaintiffs claim that Executive Order 14173 chills their ability to speak freely on these matters “solely because the President disagrees with that speech.”

The legality of DEI initiatives viewed through the lens of First Amendment principles was recently analyzed in Saadeh v. New Jersey State Bar Association, No. A-2201-22, 2024 WL 5182533 (N.J. Super. Ct. App. Div. Dec. 20, 2024), where the New Jersey intermediate appellate court held, inter alia, that the First Amendment right of “expressive association” permitted the NJ Bar Association to select the membership of its governing body through intentional inclusion of specific underrepresented groups in furtherance of the association’s expressed ideological position: “that it is necessary and beneficial to promote diversity and inclusion in New Jersey’s legal profession.”

In Saadeh, the NJ Bar Association set aside 13 of the 94 “leadership seats” on its Board for attorneys from underrepresented groups. The trial court held this policy was an impermissible quota violating the NJ Law Against Discrimination (LAD). The appellate court reversed, relying in large part on Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000), which held that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound a point of view contrary to its beliefs” by directing its membership choices. Consistent with Dale, the appellate court in Saadeh opined that “[c]ompelling the Association to alter or eliminate its program to ensure diversity in its leadership to comply with the LAD would significantly burden the expression of its views, thus running afoul of the Association’s First Amendment right of expressive association.” In doing so, it relied on “[t]he bar association’s decades-long commitment to diversifying its leadership,” which left “no doubt about the sincerity of its commitment.”

As the Trump Administration challenges DEI efforts in the private sector, Saadeh could provide a roadmap to organizations seeking to uphold their diversity initiatives.

Clark Hill law clerk Sydney Kesselman contributed to this article.

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