The Office of the Attorney General was established some 200 years before the first woman ever served in the role (Janet Reno, 1993-2001). It would take an additional decade for the first person of color to hold the office (Alberto Gonzales, 2005-2007). Since the passage of the 1789 Judiciary Act — the law that created the office, Pam Bondi is only the third woman to serve as Attorney General.
It is in this context that I consider three consequential recent documents related to diversity, equity, and inclusion (DEI), as well as diversity, equity, inclusion, and accessibility (DEIA):
- Bondi’s Feb. 5, 2025 memo entitled Ending Illegal DEI and DEIA Discrimination and Preferences (AG memo);
- US President Donald Trump’s Jan. 31, 2025 executive order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity (executive order); and
- The US Supreme Court’s 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA decision).
By its own terms, the SFFA decision concerns university admissions, does not apply to the military, recognizes students can write anything they desire in their applications and merely says race cannot be a factor in student admissions. The decision does not criminalize DEI or DEIA; nor does it endeavor to interpret them as civil violations.
However, in their effort to restore their vision of “merit-based” hiring, the executive order and the AG memo go far beyond the SFFA decision to try to return America to the over 200 straight years of white men only being considered or hired for positions such as Attorney General of the United States.
This is what I call the Plessy game. The 1896 Supreme Court case Plessy v Ferguson authorized racial segregation in passenger trains. That decision was glommed onto to enshrine segregation across America, including Woodrow Wilson’s resegregation of the federal service. In our present case, the executive branch is glomming onto the SFFA decision in a bid to take America back to what proponents see as a merit-based system. Powerful and rich forces are spreading their fetid wings across the US to force this idea into every nook and cranny of society.
The question then becomes whether American society, out of timidity, fear, or wrongheaded belief, wishes to return to those days of “white men only need apply.”
Some might argue that the executive order and AG memo do no such thing — that they merely speak to assuring equal opportunity. And yet, they advocate for a return to practices that historically led to only white men being considered and hired.
The so-called “merit-based” period they romanticize was one where consideration and appointment rested more on relationships than actual merit. The fundamental criterion for consideration and hiring was who one knew rather than what one knew. And since, due to virulent discrimination, white men primarily knew other white men as peers, those relationships led to the lily-white outcome discussed above — the very system to which the President and the Attorney General (a woman, which is an irony not lost on anyone except possibly her) wish we return. If you believe I overstate the case, consider Attorney General Griffin Bell’s own comments about judicial appointments, courtesy of a 2021 University of Toledo Law Review article by Katherine Simpson.
For certain white individuals, this vision might seem appealing as it reduces competition in professional spaces — a return to those “good old days” that lasted 200 years for women and 210 years for people of color seeking the Attorney General role. I distinctly recall a white colleague once lamenting to me about the competition he faced from women and minorities.
The fundamental problem is that during those supposedly halcyon 200+ years to which these documents wish to return us, rampant bigotry and misogyny excluded all but white men from consideration and hiring. I know this not only from historical accounts but from the lived experiences of both my parents and myself.
Eventually, I hope a legal case will emerge that draws together all evidence — both circumstantial and direct — of the current Administration’s intent to resurrect the era of “white men only” discrimination under the guise of returning to a merit-based system. Such evidence would encompass:
- The anti-DEI Executive Actions published on whitehouse.gov
- Various anti-DEI memoranda circulating across all Executive branch functions
- Anti-DEI legislation adopted or proposed in multiple states
- Even seemingly minor details, such as the reinstatement to the so-called DOGE of a 25-year-old author of racist and eugenicist writings who proudly admits he was “a racist before it was cool”
This reinstatement, following his initial dismissal, occurred at the specific direction of President Trump, Vice President JD Vance, and private citizen Elon Musk — a white South African/naturalized American billionaire who directs the DOGE, which according to publicly available information, employs no Black individuals.
Consider also last week’s disturbing incident when Secretary of Defense Pete Hegseth declared that “diversity is our strength” was “the worst thing he has heard” — a statement made during Black History Month in a room filled with Department of Defense personnel, many of them people of color. Or note the systematic removal of photos and exhibits throughout federal buildings depicting anyone who is not a white man.
This coordinated effort amounts to nothing less than the resanitizing of history into “whitestory.”
Perhaps these matters will receive proper international scrutiny during the next Universal Periodic Review of the United States regarding its compliance with treaty obligations under the Convention for the Elimination of All Forms of Racial Discrimination, scheduled for November 2025 at the United Nations in Geneva. One hopes that appropriate plaintiffs will also bring such evidence before United States federal or state courts.
For now, we must recognize that the Trump Administration is wielding Executive Power not to faithfully execute the laws, but rather to implement a policy laden with discriminatory intent while disguising it in the language of non-discrimination. This repugnant effort spreads across our separation of powers and our federalism like a malodorous plague.
They know it. I know it. And I daresay all Americans know it.
The pressing question before us is whether Americans will acquiesce to this ramping up of discriminatory policy disguised as the executive order and AG memo — documents that are inconsistent with both relevant law and the Supreme Court’s SFFA decision — or whether we will demand these centers of power conform to the law as it actually exists.
The evidence thus far is not encouraging, as rationalizations for cowardice (what I call “bending those knees with pretzel logic”) proliferate across the political spectrum.
This situation evokes what Langston Hughes decried in a powerful 1934 article for NAACP Oklahoma publication The Crisis addressing institutional cowardice on college campuses. Hughes concluded his critique of self-censorship at HBCUs with these stirring words:
Meanwhile, more power to those brave and progressive students who strike against mid-Victorian morals and the suppression of free thought and action! More power to the Ishmael Florys, and the Denmark Vesey Forum, and the Howard undergraduates who picket the Senate’s Jim-crow dining rooms — for unless we develop more and ever more such young men and women on our campuses as an antidote to the docile dignity of the meek professors and well-paid presidents who now run our institutions, American Negroes in the future had best look to the unlettered for their leaders, and expect only cowards from the colleges.
We would also do well to heed the wisdom shared by a recent recipient of the Outstanding Contribution to Diversity Award from global dispute resolution firm CPR earlier this month:
Every time the US has sought quality, it has arrived at diversity… Diversity and quality are closely connected. They travel together, and neither arrives at the expense of the other.
To clearly see what’s happening, we might ask: When has America ever experienced a period without massive resistance to equality for all? Certainly not during those first 200 or 210 years I discussed earlier. And evidently not today, as demonstrated by this executive order and AG memo.
So it goes. But the essential truth remains: one fights back.
Benjamin G. Davis is an Emeritus Professor of Law at the University of Toledo College of Law in Ohio.
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