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 Robertswrote that government “may never use race as a stereotype.” States …