A coalition that includes the National Association of Minority Contractors and several higher education groups on Monday filed a lawsuit to block a recent Trump executive order targeting diversity, equity and inclusion programs at federal contracting companies.
“For centuries, minority-owned businesses have faced discrimination. This executive order is aimed at undermining the very policies that work to address that discrimination and move the nation toward fairness and inclusion,” said Wendell R. Stemley, national president of NAMC, in a statement. “These policies are not always successful, but we know one thing for sure, we will not have success if we do not even try. And the first step in trying must be to openly discuss race and discrimination free from government censorship.”
The executive order prohibits federal contractors and subcontractors from engaging in “racially discriminatory DEI activities.” Noncompliance could lead to the termination or suspension of the contract, being barred from future government contracting opportunities and being sued by the Justice Department.
While contractors were already subject to anti-DEI directives that the president enacted at the start of his second term, Trump said that another order was necessary because “some entities continue to engage in DEI activities and often attempt to conceal their efforts to do so.”
Attorneys for the coalition argued in their filing that the executive order is unconstitutional.
“The administration views discussion of race and ethnicity as unlawful, and the very concepts of diversity, equity and inclusion as discriminatory. But that is flat wrong,” they wrote. “The [executive] order sanctions legal, and laudable, expression on race or ethnicity, and in doing so, violates the free speech, free association and due process rights of plaintiffs and their members.”
Parties in the lawsuit also reported that the directive could cause them to refrain from certain activities that might run afoul of the directive.
For example, NAMC’s Washington, D.C., area chapter said it was “anxious” about hosting future events that are similar to a recent mayoral candidate forum it sponsored with a Black business community organization. And a member of NAMC may stop advertising jobs in a local newspaper targeted to Black readers due to the executive order.
Democracy Forward, a national legal nonprofit, is handling litigation for the plaintiffs. NAMC is additionally represented by the Minority Business Enterprise Legal Defense and Education Fund.
“At its core, the executive order is a gag rule dressed up as a contract clause,” said Sarah von der Lippe, pro bono chief counsel of MBELDEF. “It demands minority-owned businesses trade their First Amendment right to speak about race and discrimination for fair access to federal contracts. The Constitution does not permit that trade.”
The Justice Department this month agreed on a $17.1 million settlement with IBM over DEI programs, which appeared to be the first such agreement with a federal contractor. In the settlement document, the company denied that it participated in the “covered conduct.”
