The New DEI

Polling Station in Nashua New Hampshire, from Wikimedia Commons

Since taking office, the Trump Administration has promoted its own sometimes hostile version of DEI and affirmative action. This new DEI favors discrimination in favor of certain groups who believe they have been harmed by past discrimination: those who identify as conservatives; those who reject, rather than accept, “equity” as a principle; and those who cannot qualify as civil servants because they view partisan politics to be a vital part of any government role.

Remember that the entire debate over any DEI centers on how it discriminates for or against someone, partly based on their group membership.

Consider some of the new types of discrimination emerging in 2025. First, in response to pressures for greater diversity, many colleges have eliminated preferences and signed commitments to DEI for new faculty appointments. Now they seek to favor hiring faculty who identify as "conservative” as a qualification. Similarly, you might have noticed how major newspapers now attempt to show their lack of bias by accepting many more guest editorials by those who claim conservative credentials.

Second, the main complaint against the old DEI was that it caused reverse discrimination, unfairly impacting some white people or men who were equally or more qualified than those who were hired or promoted. In response, DOGE removed many officials and contractors whose job titles or assignments involved or included the word “equity.” Of course, by that standard, the DOGE employees putting extraordinary weight on that word should fire themselves, since they were basically making an equity argument against a different conception of equity.

Third, the Administration promotes an effort to include thousands more political appointees at the expense of civil servants who the law requires to be hired based on qualifications and talent, regardless of their political affiliation.

For now, put aside whether you agree or disagree with parts of either the new or old DEI agenda. The core principle at stake is equal justice, sometimes called horizontal equity. Almost everyone, whether left, right, or center, usually appeals to this principle when they say something is “unfair.” I refer to equal justice as the queen of principles, because its extensive reach is like that of the queen on a chessboard. Since at least Aristotle’s time, the idea is that equals should be treated equally. The principle is often confused with progressivity, but equal justice applies even in systems that lack progressivity.

Judges apply equal justice when they try to impose similar punishments and treatment on people in identical situations. Nearly every major public policy debate involves some aspect of equal justice, even if not always perfectly, such as when two individuals with the same income tax base are required to pay equal income taxes.

You might initially think that applying this principle is impossible or just a matter of opinion. Since no two people are precisely the same, how can anyone prove they have experienced discrimination or are being mistreated? However, this puts the burden of proof on the wrong person. The more powerful version of this principle states that the discriminator, morally if not legally, should bear the burden of proof for acts of discrimination. (See also David French’s discussion of Ames v. Ohio, where a unanimous Supreme Court ruled that all plaintiffs approach the law equally, regardless of their group identity.)

I don’t have space here to go through all the nuances of when and how this principle can or should be applied by the government or you and me in our private lives. All choices, including voting, by their very nature, involve discrimination. We discriminate by group when we help fellow alums find jobs, donate selectively to our geographical community, or join a club. Clearly, there can be good and bad reasons for doing so, but the government can’t go around policing every choice, nor should it.

Indeed, only a few types of discrimination, such as those based on race, color, sex, religion, and national origin, have been made illegal or unconstitutional.

The new DEI differs from the old DEI in that it often doesn’t involve discrimination that might be deemed unconstitutional or illegal. For example, the recent government purge of employees hit young people, as newer hires, very hard, but Congress has only banned age discrimination against the old, not the young. However, that doesn’t make the discriminatory action fair or efficient.

Consider the effort to hire more people who identify as conservative. It is undoubtedly true that academia has an excess of individuals who identify as liberal, while civil servants responsible for tasks like housing (Housing and Urban Development) or health (Health and Human Services) tend to display “liberal” tendencies in wanting to help the clients Congress instructed them to serve.

In my view, having more diversity in political thinking would be beneficial. However, binary thinking and group labels don’t get us there. What happens to independents and those who don’t subscribe to or accept binary labels like liberal versus conservative?

Does the new DEI movement, with its new forms of discrimination, actually create more fairness? Hardly. And saying so exposes the conflicting logic behind the new DEI.

Once you favor people based on a group characteristic, you almost always end up discriminating against specific individuals outside of the favored group. For example, if the goal is to serve enough disadvantaged students—a legal form of discrimination—being Black doesn’t automatically make someone more disadvantaged than being white or Asian. If the goal is to reward people based on merit or ability, which is also legal, then identifying as conservative doesn’t make someone a better student, columnist, civil servant, or teacher.

Any binary choice between a favored group and everyone else risks unfair discrimination against those who are equally deserving or meritorious. Since laws and courts can only evaluate the legality of some actions, we as individuals, college officials, consumers, or producers must make decisions without relying on the government to regulate every choice.

Don’t think the DEI debate will disappear just because the right-wing version of cancel culture condemns the DEI acronym. Diversity, equity, and inclusion can build a better society when they promote equal justice, but can lead to a worse one when they don’t.