Courts can serve as best defense against Oval Office directives

By Kisha A. Brown

Intentional chaos erupted when newly sworn in President Trump issued 70 executive orders (EO’s) in his first week of office.One new EO, in particular, titled “Ending Illegal Discrimination and Restoring Merit-based Opportunity,” has propelled the federal government and some of the largest corporations in the country to change its diversity policies.

Kisha A. Brown, founder and CEO of Justis Connection, is an established civil rights attorney and social entrepreneur. A graduate of Georgetown University Law Center and Wellesley College, Kisha previously served as director of both the Maryland Attorney General’s Legislative Affairs division and the Civil Rights department. She was the first woman to lead the Baltimore City Civil Rights office. She is a past president of and member of several local bar associations and serves on the executive board of several nonprofits including Coppin State University Development Foundation and the National Children’s Center.
Credit: Courtesy photo

An executive order is a directive by the president that exerts policy over the federal government. An EO is not a law or statute. It cannot change the Constitution. It also can be undone by a subsequent president. 

The “Ending Illegal Discrimination” executive order revokes five previous executive orders of former presidents that focused on promoting diversity and supporting environmental justice, including the 60-year standing EO 11246 issued by President Lyndon B Johnson in 1965, which every Democratic and Republican president since then has kept in place. EO 11246 required:

affirmative action in hiring, and prohibits federal contractors from discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. Contractors are also prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others.

The revocation of EO 11246 and the directive to dismantle diversity, equity and inclusion (DEI) initiatives throughout the federal government have led to the immediate layoffs of federal government employees. President Trump’s “Ending Illegal Discrimination” EO also states that the federal government shall “eliminate any discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.”

To be clear, the federal government was not previously promoting or engaging in discriminatory or illegal civil rights policies. Promoting diversity, equity and inclusion is not illegal and it is not unlawful. The inflammatory language used by the president is intended to give the appearance of shutting down a nefarious liberal-leaning scheme that advantaged Black people and other people of color. He will find out that the majority of “DEI” beneficiaries are non-Black people–in both the government and private sector.

Several other executive orders attempt to change birthright citizenship, shut down the USAID agency, halt all federal grants, and move transgender women to male prisons. The administration has also halted all of the current civil rights investigations and cases underway by the Department of Justice (DOJ). For example, it would end the enforcement of DOJ police department consent decrees around the country where the federal government oversees specific reforms mandated to local police jurisdictions over a period of time. These early actions are seen as a message that the DOJ will not be a legal recourse when civil rights laws are broken.

However, resistance is already fully underway–whether it be litigation, grassroots organizing and activism, boycotting, using our voices in public and private settings and rest.

Litigation or using the court system is helping hold the line as many of the president’s EO’s have already been challenged in court by nonprofit organizations and state governments. Judges around the country have put a halt to the implementation of many of the president’s hasty directives, noting the overreach and blatant disregard of the law by the president. There will be appeals and they all eventually lead to the highest court in the land, the Supreme Court, which has a conservative super majority (6-3).

Yet the use of litigation is not reserved to the big and mighty. Those locally based organizations, whose funds have been cut already, as well as individuals who have been put on leave, can also use the courts to protest potential unlawful deprivations of funds and jobs. Just because the federal government sends you an email stating it’s so, doesn’t mean that they followed long-standing policy, procedures or even statute in their decision. The courts are a mechanism for everyone to challenge the unlawful practices of government or private individuals. Black people have employed the legal system at every step since our arrival and it is still a viable tool for us to ensure that we are not railroaded or summarily rejected by an administration that intends us harm.

In this my new monthly column, “Legally Driven,” I will be exploring how we employ justice for ourselves–both the personal and the collective. We have always had to be thoughtful and strategic in advancing our own cause. In the words of the fallen prophet Nippsy Hustle, “The marathon continues.”

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