Earlier this month, the Fearless Fund settled its case with opponents of its grant initiative supporting Black women entrepreneurs, ultimately agreeing to close the program. Read more about the settlement, its ramifications, and other DEI news, court cases, and developments in this month’s edition of the Pulse.
DEI In the News
Corporate America has failed to embrace DEI. An AI chatbot could be part of the solution
The Guardian, Sept. 26
Customers value genuine DEI commitments from brands and can spot fake allies, research shows
Fast Company, Sept. 25
New Edelman data: What do Americans really think of “DEI”?
The Aspen Institute, Sept. 25
The Business Corner: Companies should increase diversity efforts
The Philadelphia Metro, Sept. 25
Judge partially blocks Transportation Dept. program for minorities and women
The Washington Post, Sept. 24
America’s retreat from DEI is shortsighted—and just plain dumb
Fast Company, Sept. 23
Rep. Burgess Owens’ new bill would prohibit college accreditors from requiring DEI
CRT Deseret News, Sept. 23
How law firms are keeping DEI opponents at bay (podcast)
Bloomberg Law, Sept. 20
DEI isn’t working. inclusive economics might
Time Magazine, Sept. 20
Civil rights groups push back on anti-DEI efforts
INC. Magazine, Sept. 20
King & Spalding seeks dismissal of diverse hiring program suit
Bloomberg Law News, Sept. 20
Civil rights groups call on major corporations to stick with DEI programs
AP News, Sept. 19
DEI crusader closes after seeing companies renege on diversity
Bloomberg, Sept. 19
How to fund Black businesses during a DEI backlash
Brookings, Sept. 18
Which companies have dropped DEI so far?
HR Dive, Sept. 18
Here’s what the Fearless Fund settlement means for DEI efforts nationwide
Inc. Magazine, Sept. 18
US companies nix career programs for women amid DEI backslide
Bloomberg News, Sept. 17
Major companies abandon an LGBTQ+ rights report card after facing anti-diversity backlash
AP News, Sept. 17
What the Fearless Fund settlement means for philanthropic freedom
The Chronicle of Philanthropy, Sept. 17
JPMorgan Chase CEO maintains commitment to diversity, says it makes for good business
Black Enterprise, Sept. 17
Over $17 million in DEI program cuts reported at UNC schools
The Carolina Journal, Sept. 12
Fearless Fund settles with DEI foes, ends grant program for Black women
The Washington Post, Sept. 11
New UNC System policy leads to closing of DEI offices and 59 jobs eliminated
Axios, Sept. 11
DEI retreat signals ‘great quieting’ in corporate America
Bloomberg, Sept. 10
Employer cutbacks to worker diversity groups pose legal risks
Bloomberg Law, Sept. 10
How DEI can survive this era of backlash
Harvard Business Review, Sept. 10
What Good Looks Like: A corporate accountability report on diversity, equity and inclusion
Congressional Black Caucus, Sept. 9
Black Caucus issues new guidelines for DEI policies and urges firms to help reduce racial wealth gap
AP News, Sept. 9
Europe’s regulatory red tape is protecting its companies from the DEI backlash embroiling U.S. peers
Fortune, Sept. 9
The rise and fall of the DEI movement
NPR, Sept. 9
Conservative group praises Gov. Cox in ad for ‘dismantling’
DEI Deseret News, Sept. 6
How the U.S. supreme court’s affirmative action ruling unleashed anti-DEI cases
The Guardian, Sept. 6
Arkansas lawmaker plans anti-DEI legislation
Axios, Sept. 5
What does it mean when one of the largest spirits companies turns away from its DEI goals?
Fast Company, Sept. 5
Venture capital firms caught in the middle of DEI legal fights
Bloomberg Law News, Sept. 5
Molson Coors is walking back its DEI goals
Inc. Magazine, Sept. 4
Robby Starbuck: the activist pushing US companies to ditch their DEI vows
Financial Times, Sept. 4
I’m a queer farmer. Here’s how I’m fighting back against Tractor Supply’s anti-DEI stance
Fast Company, Sept. 3
Is the tide turning on diversity initiatives?
The Week, Sept. 3
Alabama anti-DEI law shuts Black Student Union office, queer resource center at flagship university
AP News, Aug. 30
D.E.I. Is not working on college campuses. We need a new approach.
The New York Times, Aug. 30
Jack Daniel knew the value of an inclusive workplace
Time Magazine, Aug. 29
DEI training presents risks for the employer San Antonio Employment
Law Blog, Aug. 29
Former US attorney general Loretta Lynch and other experts grapple with the future of diversity, equity, and inclusion initiatives
NYU Law News, Aug. 26
DEI In the Courts
Hogarty v. Cherry Creek School District, et al.
On Sept. 25, America First Legal filed a lawsuit on behalf of Patrick Hogarty, a former Dean of Students at Campus Middle School in the Cherry Creek School District. The suit, filed in the U.S. District Court for the District of Colorado, names the Cherry Creek School District and its senior administrative officials as defendants, alleging violation of Hogarty’s First Amendment rights after his position was eliminated following remarks he made during a diversity and inclusion training session.
Mid-America Milling Company, LLC, et al., v. United States Department of Transportation, et al.
Two construction companies sued the Department of Transportation (DOT) to block the Disadvantaged Business Enterprise (DBE) program, which aims to award 10% of certain contracts to minority- and women-owned small businesses. The plaintiffs claim the program is unconstitutional under the Fifth Amendment due to race discrimination. On Dec. 15, 2023, they requested a preliminary injunction to halt the program. The DOT responded on Jan. 16, with a motion to dismiss. On Jan. 26, the DOT opposed the injunction, arguing that the plaintiffs lacked standing, wouldn’t suffer irreparable harm, and that the program addressed past discrimination.
- On Sept. 23, U.S. District Judge Gregory F. Van Tatenhove granted a preliminary injunction. The injunction applies only to the two plaintiffs—both transportation contractors—and at least two states, Kentucky and Indiana, where the contractors operate. In his decision, Judge Van Tatenhove noted that the government failed to justify the program and that the plaintiffs would “likely win on the merits of their constitutional claims,” which could have nationwide implications.
Scott Gerber v. Ohio Northern University, et al.
Dr. Scott Gerber, a tenured professor at Ohio Northern University, was removed from his classroom and given the choice to resign or face termination proceedings after criticizing the University’s diversity, equity, and inclusion (DEI) hiring practices. He had expressed objections to the hiring process to both the University’s administration and the Equal Employment Opportunity Commission (EEOC). Gerber chose not to resign, and the University later issued a press release citing concerns for the safety of faculty, staff, and students. Following several months of proceedings, Ohio Northern University terminated Dr. Gerber’s employment. He claims the termination was without cause and a breach of his employment contract.
- In early September, the Hardin County Common Pleas Court denied Ohio Northern University’s (ONU) motion to dismiss a lawsuit filed by America First Legal (AFL) on behalf of Dr. Scott Gerber. The case will now move forward to trial.
Am. Alliance for Equal Rights v. Fearless Fund Mgmt., LLC
The American Alliance for Equal Rights (AAER) filed a lawsuit against Fearless FundManagement, a venture capital firm owned by Black women. Fearless Fund runs a charitable grant program giving $20,000 grants to Black female entrepreneurs. AAER claims this program violates Section 1981 and asked for a preliminary injunction.
- On Sept. 11, Fearless Fund closed down the grant contest for Black women business owners as part of a settlement agreement. In a 2-1 ruling, the appeals court ruled that AAER, led by conservative activist Ed Blum, was likely to prevail in its lawsuit claiming that the program illegally discriminated on the basis of race.
YAF v. Department of Education
On Aug. 26, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit against the Biden-Harris administration focused on the U.S. Department of Education’s McNair Postbaccalaureate Achievement Program. The research grant is awarded to institutions of higher education to prepare eligible participants for doctoral studies through involvement in research and other scholarly activities. The grant is focused specifically on students from disadvantaged backgrounds. WILL is representing a chapter of Young Americans for Freedom at the University of North Dakota, alleging that the students from the University are “ineligible for the program solely due to their skin color.” A 2019-2020 report on participant characteristics is available here.
- On Sept. 4, the Young America’s Foundation (YAF) filed a motion for a preliminary injunction to stop the Department of Education (DOE) from enforcing racial and ethnic requirements in the McNair program. YAF argues that these criteria do not meet the strict legal standards for affirmative action since there was no evidence of discrimination when the program was created. The DOE has not yet been served, according to the docket.
California for Equal Rights Foundation v. City of San Diego
On March 12, the Californians for Equal Rights Foundation filed a complaint on behalf of members who are “ready, willing, and able” to purchase a home in San Diego, but ineligible for a grant or loan under the City’s BIPOC First-Time Homebuyer Program. The plaintiffs allege that this violates the Equal Protection Clause of the Fourteenth Amendment.
- In April, the attorney for the City of San Diego requested a stipulation for an order extending the time to respond to the complaint from April 10 to May 1. As of August, the lawsuit is in active litigation and waiting for the first trial.
Randall E. Dill v. IBM Corporation
On Aug. 20, a former IBM employee said he was discriminated against by the IBM Corporation, as a white man. The plaintiff claims that the Defendant’s leadership was “under pressure from the CEO and financially incentivized to hire people based on their skin color and sex.” He claims his employment was terminated so that IBM “could pursue its illegal racial quotas.”
Students for Fair Admissions v. United States Naval Academy
On Oct. 5, 2023, Students for Fair Admissions (SFFA) sued the U.S. Naval Academy, arguing that consideration of race in its admissions process violates the Fifth Amendment. On Dec. 20, 2023, the district court denied SFFA’s preliminary injunction motion, holding that SFFA did not show that it would succeed on the merits of its Equal Protection claim because it failed to show that the defendants’ justifications for their policies did not satisfy strict scrutiny.
- On Aug. 15, Students for Fair Admissions (SFFA) filed for partial summary judgment, arguing that four anonymous members who were denied admission to the Naval Academy should have the right to sue. They claim these members were unfairly denied a chance to compete for admission equally and are ready to reapply if the court resolves the issue. The Naval Academy opposed the motion on Aug. 23 stating that the issue of standing should be addressed after trial due to disputed facts about the members’ readiness to reapply. SFFA replied on Aug. 28, arguing these disputes are irrelevant. A pretrial conference took place on Sept. 5, and a bench trial is scheduled for Sept. 16–27.
Other DEI Developments
Sept. 3 State Senator Dan Sullivan, the Republican of Jonesboro, Arkansas, and co-chair of the Arkansas Legislative Council’s Higher Education subcommittee said he plans to file legislation to eliminate DEI programs at Arkansas colleges and universities. In August, Sullivan requested a study on DEI in the state be conducted and concluded by the end of 2024 to make legislative proposals during the 2025 session. Sullivan announced the study’s conclusion Tuesday at the subcommittee’s meeting on Arkansas State University’s Jonesboro campus, though no formal report was presented.
Sept. 3 America First Legal (AFL) filed a federal civil rights complaint with the U.S. Equal Employment Opportunity Commission (EEOC) against Williams-Sonoma, Inc., alleging unlawful employment practices. Williams-Sonoma publicly states that factors such as race, sex, and national origin play a role in its hiring and contracting decisions. In its 2024 Annual Report, the company highlighted that its Equity Action Plan led to “approximately 68.1% of [our] total workforce identifying as female, and approximately 41.1% as part of an ethnic minority group.” The report also noted that “56.6% of Vice Presidents and above identified as female.” In addition to the complaint, AFL sent a letter to Williams-Sonoma’s board of directors demanding an end to these practices. The complaint specifically focuses on practices described on the website of Williams-Sonoma’s subsidiary, Pottery Barn Kids.
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