The Pulse: NAACP Challenges Anti-DEI Legal Efforts


As part of NMSDC’s ongoing efforts to promote DEI and push back against efforts threatening supplier diversity and other DEI programs, we are highlighting the latest DEI news, legal developments, and court filings. The April edition of the Pulse is below.

Picture of man in a blue suit holding a table that has DEI projecting from it.

In the News

Abolish DEI Statements
The Atlantic April 18

The Supreme Court just complicated employer DEI programs
Bloomberg Law April 18

Utah’s anti-DEI law ‘lights a fire’ under nonprofits as public resources stand to dismantle
The Salt Lake Tribune April 18

DEI critics were hoping that the Supreme Court’s Muldrow decision would undermine corporate diversity programs.
Fortune April 17

North Carolina university committee swiftly passes policy change that could cut diversity staff
AP News April 17

Kansas’ higher ed board adopts an anti-DEI policy after pressure from GOP legislators
AP News April 17

NAACP joins legal challenge against Arkansas in bid to fight anti-DEI efforts
The Hill April 16

This TJ alum helped defend the school in court. Now she’s defending DEI.
The Washington Post April 15

Kali and Joshua Fontanilla’s Exodus Institute aims to challenge ‘indoctrination’ in schools
The Washington Post April 15

NAACP joins lawsuit against Arkansas LEARNS Act in attempt to fight anti-DEI efforts
ABC News April 15

Virginia NAACP threatens to sue Youngkin over DEI transparency
Axios April 15

With state bans on D.E.I., some universities find a workaround
The New York Times April 12

The backlash against diversity, equity, and inclusion in business is in full force − but myths obscure the real value of DEI
The Conversation April 11

DEI mandates pervade colleges and universities: survey
Washington Examiner April 11

University of Texas at Dallas lays off DEI staff
Axios April 10

House Republicans are trying to upend DEI in medical schools
Prism April 8

What needs to change about DEI — and what doesn’t
Harvard Business Review April 9

Democrats seek to codify DEI in federal programs
The Hill April 5

Map: the impact of anti-DEI legislation
ABC News April 5

University of Texas professors demand reversal of job cuts from shuttered DEI initiative
AP News April 5

Utah universities move to protect DEI against ban deadline
Washington Examiner April 4

Goldwater Institute’s lawsuit involving ASU could threaten DEI training in Arizona
Arizona State Press April 4

Mark Cuban claps back at DEI critics again, says it helps drive his profits
Inc. April 3

UT-Austin lays off employees to comply with Texas’ DEI ban
The Hill April 2

The University of Texas at Austin shuts down DEI division
National Review April 2

Conservative groups object to ‘naming names’ rule from Pfizer diversity decision
Reuters April 2

“The backlash is real”–behind DEI’s rise and fall
Axios April 2

Elon Musk is wrong about DEI
Forbes April 2

1 big thing: anti-racism protections — for white people
Axios April 1

Trump aims to be a fearless warrior for white advantage
The Washington Post April 1

States clash with first amendment on DEI, captive audience laws
Bloomberg Law April 1

Advocates sound alarm after shuttering of House office promoting diversity
The Hill March 31

Black lawmakers in South Carolina say they were left out of writing anti-discrimination bill
AP News March 28

University of Texas at Austin students say cultural programs are struggling to stay afloat in the wake of anti-DEI law
CNN March 28

Attacks on Baltimore’s mayor are just racism in disguise
Bloomberg March 28

Stephen Miller’s legal group targets Disney board on diversity
Bloomberg Law March 27

After Texas’s DEI ban, college students are reconsidering state schools
The Nation March 26

Wyoming’s GOP governor partially protects DEI at University of Wyoming
Washington Examiner March 25

How college athletes could fight back against anti-DEI laws
MSNBC March 23

U.S. House Office of Diversity and Inclusion to be disbanded as part of government spending bill
CNN March 23

Southern Utah University students worry anti-DEI rules will fuel extremists, hate crimes
The Salt Lake Tribune March 23

Illinois federal judges rescind diversity policies after conservatives complain
Reuters March 22

DEI In the Courts

American Alliance for Equal Rights v. Founders First Community Development Corporation,
On April 16, the organization American Alliance for Equal Rights (AAER) sued Founders First Community Development Corporation, an organization that provides grants and other services to “growing businesses led by diverse founders.” AAER alleges that Founders First’s Texas Job Creators Grant Program, which provides $50,000 and admission to Founder First’s business accelerator program, violates 42 U.S.C. § 1981 by discriminating on the basis of race. To apply for the grant, entrant companies must meet certain requirements, including that the company “Founder identify as one of the following: Latinx, Black, Asian, Women, LGBTQIA+, Military Veteran, or located in a Low to Moderate Income area.” AAER alleges that Founders First, through this grant program, establishes a contract between itself and grantees because grant recipients exchange, inter alia, sensitive commercial information for grant money. AAER alleges that it has a member “ready and able” to apply to the upcoming grant cycle (opening in August 2024) but who is precluded from doing so because he is “a straight white civilian man who does not live in one of the specified economic areas.” The same day AAER filed the complaint, it also moved for a temporary restraining order and preliminary injunction, requesting a ruling by July 31.

America Alliance for Equal Rights v. Zamanillo
In February 2024, the American Alliance for Equal Rights filed a lawsuit and requested a preliminary injunction against Jorge Zamanillo, the director of the National Museum of the American Latino, part of the Smithsonian Institution. The complaint focused on the museum’s internship program, which aimed to train Latino, Latina, and Latinx undergraduates in non-curatorial art museum careers. AAER alleged that the program discriminated based on race, violating the Fifth Amendment, by reportedly considering only Latino applicants and excluding non-Latino applicants.

  • On March 26, AAER filed a notice of settlement and stipulation of dismissal. In the settlement agreement, the Smithsonian agreed to add the following statement to the text of the scoring rubric before the application window for the undergraduate internship closes: “The Undergraduate Internship is equally open to students of all races and ethnicities. Reviewers should not give preference or restrict selection based on race or ethnicity.”

Kascsak v. Expedia Inc.
On Nov. 9, 2023, a white man sued Expedia and a top executive for reverse discrimination in relation to the hiring process for a leadership role. The plaintiff claimed he was passed over in favor of a “diverse” candidate, a Black woman. The plaintiff claimed he was the victim of discrimination on the basis of race and sex in violation of Title VII, Section 1981, and the Texas Labor Code. On Jan. 22 the defendants moved to dismiss, arguing that (1) the plaintiff lacked personal jurisdiction over the Expedia executive, and (2) the plaintiff failed to sufficiently plead a Section 1981 claim because race was not the sole but-for cause of the adverse hiring decision. The plaintiff opposed the motion on Jan. 29 and the defendants replied on Feb. 5.

  • On March 25, the court dismissed all claims against the individual executive defendant for lack of personal jurisdiction. The court denied the motion to dismiss from Expedia, holding that Section 1981 permits claims where race is not the single but-for cause of an adverse contracting action.

Anderson v. Arizona Board of Regents
On March 19, Owen Anderson, a faculty member at Arizona State University (ASU), was required to take the ASU Inclusive Communities training but did not complete it or the subsequent quiz. The training materials obtained by the Goldwater Institute included statements that were perceived as promoting blame or judgment based on race, ethnicity, or sex, which violated Arizona law. Despite objections from the Goldwater Institute and warnings to cease such activities, ASU continued to fund and mandate the training, thereby allegedly violating state law (A.R.S. § 41-1494). The complaint was filed in Maricopa County Superior Court. The lawsuit seeks declaratory and injunctive relief against the Arizona Board of Regents. The Goldwater Institute is awaiting the defendants’ response.

American Alliance for Equal Rights v. Ivey
In February 2024, the American Alliance for Equal Rights filed a lawsuit against Alabama Governor Kay Ivey over a state law requiring at least two minority members on the Alabama Real Estate Appraisers Board (AREAB). The Board has nine seats, including an unfilled “at-large” seat for a member without real estate experience. With only one minority member on the Board, AAER claims the law will mandate filling the open seat with a minority member. AAER says one of its members applied for the seat but was rejected solely because of race, violating the Fourteenth Amendment’s Equal Protection Clause.

  • On March 19, the district court denied AAER’s motion for a temporary restraining order/preliminary injunction. The court ordered AAER to confidentially disclose the identity of Member A, the anonymous member of AAER who asserted an injury. It also ordered the parties to submit a briefing, due in early April, on why a member should be allowed to proceed anonymously in the case.

Valencia Ag, LLC., v. Christopher Alexander
A cannabis company owned by white men sued the New York State Office of Cannabis Management for alleged discrimination. They claim that New York’s Cannabis Law and its regulations favor minority-owned and women-owned businesses. Specifically, they challenge regulations promoting “social & economic equity” applicants, arguing it violates the Equal Protection Clause and Section 1983.

  • On March 5, the defendants filed their opposition to the plaintiff’s motion for a preliminary injunction. On March 8, Pacific Legal Foundation, who is now representing the plaintiffs, asked to withdraw the plaintiff’s motion for a preliminary injunction, which the court granted. On March 13, the plaintiff filed an amended complaint, naming only two New York state officials as defendants in their official capacity and voluntarily dismissing others, including the claims against the two officials in their personal capacity.

Rogers v. Compass Group USA, Inc.
On July 24, 2023, a former recruiter for Compass Group USA sued the company under Title VII, alleging wrongful termination after refusing to administer the “Operation Equity” diversity program, which exclusively involved women and people of color. The plaintiff claimed she was terminated after requesting religious accommodation due to conflicting beliefs.

  • On March 21, the parties filed a stipulation of dismissal, stating that they had reached an undisclosed agreement to settle the case on Feb. 28.

Do No Harm v. Pfizer
On September 15, 2022, the plaintiff association representing physicians, medical students, and policymakers sued Pfizer, alleging that the company’s Breakthrough Fellowship Program, which provided minority college seniors summer internships, two years of employment post-graduation, and a scholarship, violated Section 1981, Title VII, and New York law by excluding white and Asian applicants. The court dismissed the case in December 2022, stating that Do No Harm lacked standing because it didn’t identify specific members, instead only submitting declarations from anonymous members. On March 6, 2024, the Second Circuit affirmed the dismissal

  • On March 20, 2024, Do No Harm filed with the Second Circuit a petition for rehearing en banc, arguing that the decision conflicted with other court rulings.

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.

  • The defendants have not yet responded to the complaint.

Do No Harm v. Gianforte
On March 12, Do No Harm filed a complaint on behalf of a white female dermatologist in Montana, alleging that a Montana law requiring the governor to “take positive action to attain gender balance and proportional representation of minorities resident in Montana to the greatest extent possible” when making appointments to the Medical Board violates the Equal Protection Clause of the Fourteenth Amendment. The complaint further alleges that since the ten filled seats are currently held by six women and four men, Montana law requires that the remaining two seats be filled by men, which would preclude the plaintiff from holding the seat.

  • The defendant has not yet responded to the complaint.

Other DEI Developments

April 17 The Supreme Court issued a ruling in Muldrow v. City of St. Louis holding that Title VII of the Civil Rights Act bars employers from discriminating in decisions like lateral transfers, without requiring employees to show that the discriminatory decision caused “significant” disadvantage. Jatonya Clayborn Muldrow sued the City of St. Louis after she was reassigned from the department’s intelligence division on public corruption and human trafficking cases to a job in the city’s Fifth District. Though she was paid the same, she said she had to start working weekends, had less prestigious assignments, and lost access to high-profile people. In short, she argued, the transfer was negative for her, and it was made on the basis of sex.

April 16 The Lawyers’ Committee for Civil Rights Under Law and Ropes & Gray LLP filed a lawsuit on behalf of their clients, the Virginia NAACP, with the Circuit Court for the City of Richmond against Governor Glenn Youngkin’s Office for violating the Virginia Freedom of Information Act (“VFOIA”). The lawsuit details the Governor’s failure to produce any records responsive to the group’s request for public information sent on August 31, 2023. The requested records relate to the Youngkin Administration’s active subversion of his and his administration’s responsibilities under a 2020 law that created the position of Director of DEI for the Commonwealth with the duties to promote inclusive practices in state government, address systemic inequities in state government practices, and facilitate equity policy. The request also sought records of the governor’s communications with state universities over their DEI efforts, and other related matters.

April 4 The State Bar of Wisconsin and the Wisconsin Institute for Law & Liberty (WILL) reached a settlement agreement ending alleged discriminatory DEI practices at the Wisconsin State Bar. The suit, Daniel Suhr v. Dean R. Dietrich et al., was filed in December 2023. Suhr objected to the use of his state bar dues being used to fund the Diversity Clerkship Program. The settlement reads that the Wisconsin State Bar will open its Diversity Clerkship Program to all first-year law students attending either Marquette University Law School or the University of Wisconsin Law School who are in good standing. All promotional, explanatory, or other materials created by the State Bar must clearly state that such students are all eligible to participate in the Diversity Clerkship Program regardless of race.

April 3 the Wisconsin Institute for Law & Liberty (WILL) announced a settlement between its client, Rev. Dr. Gregory Schulz, DMin, PhD, and Concordia University Wisconsin (CUW), where Dr. Schulz served as professor of philosophy until he was suspended in February 2022 for criticizing what he regarded as the politically “woke” direction of the university. The dispute between Dr. Schulz and Concordia began over two years ago when CUW suspended him for publishing an essay titled Woke Dysphoria at Concordia. CUW’s subsequent suspension of Dr. Schulz allegedly violated his contract, which guaranteed academic freedom and due process rights. Both WILL and Dr. Schulz are reportedly satisfied with the settlement, though the terms are confidential.

March 28 America First Legal (AFL) released internal research alleging that the Bill and Melinda Gates Foundation is funding DEI programs, highlighting donations made by the Gates Foundation to the Inland Empire Community Foundation’s Black Equity Fund, the Indian American Impact Project, and the Equity in Education Coalition, among others. Stephen Miller, who leads AFL, said in a statement that “these foundation gifts appear to be funding extreme activists and programs that promote illegal racial discrimination against whites and other groups, radically undermine public safety, and foment dangerous anti-cop extremism.” AFL called for an explanation and accounting of the Foundation’s contributions to various organizations.

March 27 America First Legal sent a letter to The Walt Disney Company’s CEO Bob Iger, Board of Directors, and management against The Walt Disney Company, accusing them of breaching fiduciary duties and violating federal securities laws due to its internal diversity, equity, and inclusion policies and diversity content in children’s programming. AFL has asked Disney to immediately cease and desist from all employment and contracting practices that may discriminate on the basis of race, color, sex, or national origin; disclose the risks associated with its DEI practices and policies in its Form 10-K and proxy statements; and retain an independent counsel for a full investigation of the company’s hiring, promotion, recruitment, and purchasing practices.

March 27 The South Carolina House passed a bill to restrict diversity, equity, and inclusion initiatives at public colleges and universities over the objections of Black lawmakers who said they weren’t included in crafting the proposal. Black House members like Rep. Leon Howard said it’s absurd to develop a bill that says everyone will be treated equally without including representation from the people it targets. The proposal faces an uncertain future in the Senate.

March 25 The Equal Protection Project (EPP) of the Legal Insurrection Foundation (a conservative nonprofit) filed a complaint with the Department of Education’s Office for Civil Rights (DOE) against Minnesota’s North Central University. The complaint alleges that the George Floyd Memorial Scholarship, exclusively for Black students, violates Title VI of the Civil Rights Act by excluding non-Black students from consideration. This follows EPP’s January 22 complaint against the University of Wisconsin-Madison’s Creando Comunidad scholarship, which also prioritizes historically underrepresented racial or ethnic groups. EPP claims UW-Madison’s promotion of this program violates the Equal Protection Clause and Title VI. The same day that EPP filed its complaint against North Central University, DOE confirmed it was investigating UW’s program.

March 21 Chief Judge Diane Sykes of the Seventh Circuit addressed a judicial misconduct complaint by America First Legal against three judges from the Southern District of Illinois. The complaint alleged race and sex discrimination due to courtroom policies favoring newer, female, or minority attorneys. The complaint drew the attention of Senators Ted Cruz (R-TX) and John Kennedy (R-LA), who sent a letter to Chief Judge Sykes arguing that the policies are unethical and unconstitutional in light of SFFA v. Harvard. Chief Judge Sykes found that Judge Dugan had amended his policies, while Judges Rosenstengel and Yandle rescinded theirs. In letters attached to Chief Judge Sykes’ order, Judge Rosenstengel stated that she “chose the wrong means to accomplish [her] goal of expanding courtroom opportunities for young lawyers,” and Judge Yandle acknowledged that the now-rescinded policy, as worded, “created a perception of preferences based on immutable characteristics.”

March 20 Governor Kay Ivey signed Alabama Senate Bill 129 one day after the bill passed both chambers of the Alabama General Assembly. The sweeping anti-DEI legislation prevents higher education institutions, public school boards, and state agencies from using state funds to support DEI programming, offices, or training, and prohibits these entities from teaching about certain “divisive concepts” related to race, bias, and meritocracy.

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