2 Weeks In: Reflections, Recommendations, & Resources on DEI

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Dear Avarna community,

The political attack on DEI has escalated in the past two weeks, with Executive Orders and memoranda dismantling federal DEI offices, encouraging employees to inform on DEI supporters, demanding lists of DEI contractors (including us), attempting to block funding to any DEI-related programming and education, and even purporting to criminalize our work.

To help our community get ahead of anticipated attacks, we published a blog post last summer and hosted a webinar in December offering our analysis of the legal landscape and some strategies to continue advancing our collective work. If you haven’t watched the webinar, you can watch it below.

While much of what we covered in the blog post and webinar still applies, we want to offer some reflections on these past two weeks, additional recommendations, and resources to help you move forward. Note that this is not legal advice. 

It’s normal to feel anxious and concerned. We’ve also experienced a range of emotions, from receiving Stop Work Orders from our government clients to seeing dedicated federal colleagues placed on indefinite leave.

The explicit aim of these actions has been to stoke the 4 C’s of chaos, confusion, cognitive overload, and constitutional challenges. The sheer volume of EOs across various policy areas creates chaos, vague language fosters confusion, information overload clouds decision-making, and constitutional challenges are an attempt to bypass Congress and push through legally indefensible policies.

Ultimately, the 4 C’s are meant to hide the truth that these Executive Orders don’t legally dismantle DEI. Lawyers note that these EOs also don’t change existing discrimination laws like Title VII of the Civil Rights Act or ban private-sector DEI programs. While the EOs’ gratuitous use of terms like “illegal,” “unlawful,” “immoral,” and “pernicious” is meant to mislead, the Executive Branch has yet to provide any clarity on how it can single-handedly outlaw DEI or mandate that nonprofits and private companies stop their DEI efforts. In fact, the EO titled Ending Illegal Discrimination and Restoring Merit-Based Opportunity “encourages,” but does not mandate, DEI cessation in the private and nonprofit sectors. In addition, Executive Orders alone can’t change laws or regulations and generally require follow-up actions for enforceability.

Most nonprofits and private companies that do not depend on federal funding or contracts are well-positioned to reinforce their commitment to DEI and show solidarity with those impacted by federal changes because they are less vulnerable to attacks than federally funded organizations.

Any frivolous investigations stemming from the “Ending Illegal Discrimination…” EO’s demand that agencies make hit lists of “up to nine” organizations will likely be directed at large visible nonprofits and funders, universities with major endowments, major corporations (likely with national and international reach), and the financial sector. Even if future legislation targeting nonprofits—such as the Stop Terror-Financing and Tax Penalties on American Hostages Act (which is now in the Senate)—is passed, it would likely affect organizations engaged in high-profile social justice advocacy rather than general DEI efforts.

Nonprofits and private companies also have First Amendment rights to promote their DEI values through corporate speech, workplace policies, and training programs under the Supreme Court’s 2006 decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. That right extends to advocacy and political expression under the 2010 Citizens United v. FEC case, where the Supreme Court held that 501(c)(4) nonprofits and corporations have the First Amendment Right to spend unlimited amounts on political speech. While we oppose the idea of granting corporations the same rights as individuals, one silver lining of Citizens United is that the decision’s broader implications may now offer some protection for nonprofits engaged in DEI work, especially if it’s tied to advocacy or political expression.

What should you do? Here are our recommendations:

1. Pause and assess: Don’t react impulsively. The inflammatory rhetoric in the EOs is meant to spark a false sense of urgency. If your organization isn’t providing direct essential social services (think food, water, shelter, medicine, safety for individuals), take a step back and evaluate whether the urgency is real.
2. Take mindful action: Rather than reactively rolling back DEI efforts wholesale, spend some time doing scenario planning so you’re not caught off guard in the future and consider tweaking some of your programs. Timothy Snyder, a renowned expert on authoritarianism, frequently emphasizes the importance of resisting premature compliance, urging us to “not obey in advance.” Given the Executive Branch’s lack of authority over private company and nonprofit DEI work, don’t make their job easier by complying preemptively. To help you with scenario planning and making adjustments to your DEI work to insulate yourself, we’ve compiled a list of helpful resources here, including our December webinar. 
3. Separate federal and DEI funding: To the extent you receive federal funds, one easy step to avoid exposure is to keep federal funding separate from funds allocated for DEI initiatives—do not commingle them.
4. Focus on your levers of power, not your brand: A valid critique of DEI work is that it can seem performative or just “window dressing” for an organization. As we noted in a 2020 blog post, DEI statements are a common way that organizations might perform, but fail to actually do meaningful DEI work. Sometimes those public statements really are needed, but other times, the most impactful work might need to happen behind the scenes or underground. Because of the incredible amount of nuance in each scenario, we don’t have blanket advice for if, how, and when you should share your DEI actions in public, but only to remind you that your work should focus on where you have levers of power and how you might effect change.
5. Shift language and avoid acronyms: The last two weeks have made one thing clear: DEI as an acronym has become a political lightning rod, despite its efforts to make everyone’s life better. While you don’t need to scrub “DEI” from your materials, it’s worth exploring alternative language in your public facing work that resonates more with the communities. For example, in some communities, talking about DEI would get us shuffled out the door quickly, but if we talk about making conservation work for more people, we’re more likely to be able to at least start a conversation. Shedding the acronym is not tantamount to backing down, despite what many might say. We ourselves used this opportunity to update our website after reviewing these great resources and doing some deep thinking about what our work actually is. 
6. Advocate for access: Despite the EOs’ condemnation of “DEIA” (including access), continuing to ensure access is essential. It’s unconstitutional to restrict access to people with disabilities, and the ADA protections still stand.
7. Don’t lose sight of the long game: The last two weeks have felt all consuming, but we’d be remiss if we didn’t mention the long game. So much of our work in the next four years will be defensive, but this administration will not be in office forever, so long as our Constitution holds strong. When we are back in a more friendly administration, we should be prepared to move on important work. This means building power within local communities, learning about their needs, and drafting policies and programs to implement on day one. 
8. Take care of each other: We lose when we are a fractured community and the next four years will be a rollercoaster designed to foster infighting. The more we can show up for each other and ask for help, the stronger our community bonds will be. If you’re in leadership, be a model for what it looks like to take care of each other and to take care of yourself in difficult times. Because the EOs may also have profound impacts on your team, remind them of your mental health policies and resources, PTO policy, and any other auxiliary benefits that can help them during this time. 

We know these times are turbulent and challenging, and the sands keep shifting under our feet, but your efforts to support DEI are needed now more than ever. Stay focused, stay informed, and continue to move forward with resilience.

In solidarity,
-The Avarna Team