Why DEI Scares Trump and Project 2025 and Why It Should

Summary

Assembly Required with Stacey Abrams: Episode Summary Episode: Why DEI Scares Trump and Project 2025 and Why It Should
Release Date: January 16, 2025
Host: Stacey Abrams
Guest: Professor Kenji Yoshino, Director of NYU's Metzler Center for Diversity, Inclusion, and Belonging

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Introduction to DEI and Its Historical Significance

In this episode of Assembly Required with Stacey Abrams, hosted by Crooked Media, Stacey Abrams delves deep into the topic of Diversity, Equity, and Inclusion (DEI). She emphasizes that DEI is not a modern fad but a cornerstone of American progress, tracing its roots back over 240 years.

Stacey Abrams highlights the enduring nature of DEI:

"Since the country got started, DEI has been the way we've built ourselves. It's the way we've opened doors of opportunity for millions."
[00:00]

Abrams underscores that DEI encompasses more than just race and gender. It includes various laws and acts that have historically advanced equity in the United States, such as the 13th Amendment (abolishing slavery), the 19th Amendment (granting women the right to vote), Title IX (banning sex discrimination in education), the Americans with Disabilities Act, and the Fair Labor Standards Act.

Personal Connection to DEI

Abrams shares a poignant personal story to illustrate the real-life impact of DEI policies:

"My grandfather was conscripted into World War II and the Korean War, and yet each time he returned home to Mississippi, he was legally denied the right to vote until he was in his 40s."
[04:30]

This narrative underscores the necessity of DEI in rectifying historical injustices and ensuring equal opportunities for all Americans.

The Current Threat: Trump Administration and Project 2025

The conversation shifts to the present-day challenges facing DEI, particularly with the incoming Trump administration's Project 2025, which aims to dismantle DEI initiatives.

Stacey Abrams warns of the administration's clear intent:

"With a second Trump administration about to begin, dismantling DEI is a top priority for his administration and Project 2025."
[06:17]

Project 2025 is depicted as a systematic effort to undermine DEI by reviving executive orders that block DEI initiatives within federal entities and encouraging legislative moves to restrict DEI practices in the private sector.

Guest Insight: Professor Kenji Yoshino

Kenji Yoshino, a constitutional law professor and director of NYU's Metzler Center for Diversity, Inclusion, and Belonging, joins Abrams to provide expert analysis.

DEI as an American Ethos

Yoshino argues that DEI is intrinsically American, aligning with foundational values that have continually expanded the definition of "we the people."

"Our country began as a group of very propertied white male, landowning individuals who controlled everything. ... Every generation has tried to expand who counts as we the people."
[06:43]

Misconceptions and Backlash Against DEI

Yoshino addresses the recent backlash, including mockery by media outlets like The Daily Show that attribute societal failures to DEI.

"They [opponents] want to demonize diversity, they want to invalidate equity, and they really want to block inclusion."
[06:25]

He explains that this backlash is fueled by significant demographic shifts in the U.S., making DEI initiatives more visible and, consequently, more targeted by adversaries.

Legal Defense of DEI

A substantial portion of the discussion focuses on the legal landscape surrounding DEI, especially in light of the Supreme Court's decisions.

"I firmly, categorically and wholeheartedly reject that idea [that DEI is dead] because even in that decision the Supreme Court said ... you can still do it."
[24:52]

Yoshino breaks down the "three Ps" framework to assess the legality of DEI practices:

1. Preference: Affirmative action vs. leveling DEI practices.
2. Protected Group: Ensuring actions target groups protected under Title VII.
3. Palpable Benefit: Demonstrating that DEI actions provide tangible benefits without causing undue harm.

Strategies to Support DEI

Yoshino emphasizes the importance of proactive legal risk assessment and advocates for "leveling DEI," which focuses on removing biases to create a fair playing field rather than preferential treatment.

"Talent is everywhere, opportunity is not everywhere. Diversity, equity, inclusion closes the gap so that everyone can have a shot."
[47:55]

He advises individuals to:

• Engage in Allyship: Support marginalized groups and speak up against non-inclusive behaviors.
• Promote Universal Belonging: Frame DEI as a universal need for community and belonging, drawing from Maslow's hierarchy of needs.
• Practical Actions: Participate in employee resource groups, advocate for unbiased hiring practices, and educate oneself and others about the legal protections supporting DEI.

The Role of the Media and Public Perception

Both Abrams and Yoshino critique how the media sensationalizes and misrepresents DEI, often overshadowing the majority of organizations that continue to support DEI initiatives despite the backlash.

"The media is much more interested in the man bites dog story than in the dog bites man story."
[16:34]

They argue that a more nuanced understanding is necessary to effectively counteract the negative narratives surrounding DEI.

Conclusion: Mobilizing for DEI

In wrapping up, both speakers stress the urgency of mobilizing support for DEI in the face of political and legal challenges. They advocate for consistent, informed actions at individual and organizational levels to uphold and expand DEI principles.

Stacey Abrams concludes with actionable steps for listeners:

• Be Curious: Educate yourself about DEI.
• Solve the Problem: Embrace DEI terminology and counteract attacks by focusing on its core benefits.
• Do Good: Advocate for inclusive policies in your workplace or community.
• Start Conversations: Use examples from the episode to engage others in meaningful discussions about DEI.

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Notable Quotes

1. Stacey Abrams on DEI's Legacy:

   "Since the country got started, DEI has been the way we've built ourselves. It's the way we've opened doors of opportunity for millions."
   [00:00]

2. Abrams on Personal Impact:

   "My grandfather was conscripted into World War II and the Korean War, and yet each time he returned home to Mississippi, he was legally denied the right to vote until he was in his 40s."
   [04:30]

3. Yoshino on DEI as American Values:

   "Our country began as a group of very propertied white male, landowning individuals who controlled everything. ... Every generation has tried to expand who counts as we the people."
   [06:43]

4. Yoshino's Elevator Pitch for DEI:

   "Talent is everywhere, opportunity is not everywhere. Diversity, equity, inclusion closes the gap so that everyone can have a shot."
   [47:55]

5. Yoshino on Legal Defense:

   "As a lawyer, I know you're a lawyer too, I think we can agree that the leveling stuff is never going to be illegal."
   [24:43]

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Takeaways

• DEI is Foundational: Long-standing in American history, DEI is integral to societal progress and equality.
• Current Challenges: Political movements like Project 2025 pose significant threats to DEI initiatives.
• Legal Framework: Understanding and leveraging the legal protections around DEI are crucial for its defense.
• Actionable Steps: Individuals can support DEI through education, advocacy, and fostering inclusive environments.
• Unified Front: Mobilizing support for DEI requires collective effort and strategic communication to counteract misinformation and backlash.

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Resources Mentioned:

• American Pride Rises Network: Founded by Stacey Abrams to defend and expand DEI.
• Advancing DEI at the Meltzer Center: A resource by Kenji Yoshino analyzing federal cases against DEI.

For further engagement and to support DEI initiatives, listeners are encouraged to visit American Pride Rises Network and Advancing DEI at the Meltzer Center.

Transcript

[Stacey Abrams]

Assembly Required with Stacey Abrams is brought to you by bookshop.org Dive back into books and conquer your reading goals this year with bookshop.org whether you're searching for a sweeping biography that helps you understand what people are thinking, a novel that makes the world disappear, or a graphic novel to challenge how you see the world, bookshop.org has you covered when you purchase from bookshop.org, you supporting over 2000 local independent bookstores across the country, ensuring they'll continue to foster culture, curiosity and a love of reading for generations to come. I've just finished Drunk on All your Strange New Words by Eddie Robson and Spy School by Stuart Gibbs because children's books are awesome. Now I'm starting on Defectors, the Rise of the Latino Far Right and what It Means for America by Paulo Ramis. Look for them all at Brave and Kind Bookshop in Decatur or Tall Tales Bookstore on La Vista Road. Use Code Stacy S T A C E y to get 10% off your next order at bookshop.org that's code stacybookshop.org welcome to Assembly Required with Stacey Abrams from Crooked Media. Hi, I'm your host, Stacey Abrams. This week we're taking on an issue that affects all of us, yet it's often one of the most misunderstood and increasingly one of the most politically weaponized. And that's the conversation about diversity, equity and inclusion, otherwise known as dei. Now, opponents of DEI have a very clear strategy. They want to demonize diversity, they want to invalidate equity, and they really want to block inclusion. And that's because DEI isn't new. I know it feels like you've been hearing about it a lot recently, but it's been around for more than 240 years, basically since the start of the country. And even more concerning to those who oppose it, it's working. You see, as our nation has evolved, we have done the work of actually making our country match our mission. And as we continue to evolve, those who oppose these foundational values of diversity, equity and inclusion, they're panicking. Since the country got started, DEI has been the way we've built ourselves. It's the way we've opened doors of opportunity for millions. It's the way we've responded to the terrible mistakes that we've made and how we've corrected ourselves. When we realize that we have more work to do now, we tend to think about DEI only in terms of race and gender, which is absolutely accurate. But it's that, and it's so much more. Yes, it's the 13th Amendment that outlawed slavery. That was a DEI law. But so was the 19th Amendment, the law that gave women the right to vote, and Title ix, which bans sex discrimination in education. But there are other DEI laws that have expanded access. You've got the Americans with Disabilities act, the Fair Labor Standards Act. You've got Title one, the elementary and Secondary Education act, which funds the poor students in our country, not to mention the Family Medical Leave act and the Respect for Marriage Act. Each time our country has corrected its bad actions and enacted new laws to prevent or remedy discrimination, that's dei. And more importantly, these laws have created new avenues for advancement and for success for more people. We're talking veterans, young people, the poor, all of whom simply want their shot at the American Dream. You'll hear a little passion in my voice because DEI is important to me. You see, my grandfather was conscripted into World War II and the Korean War, and yet each time he returned home to Mississippi, he was legally denied the right to vote until he was in his 40s. It took DEI, the Civil Rights act of 1964, and the Voting Rights act of 1965 to grant him the full measure of citizenship. We know that in our country, we often have to take steps to make right what was once done wrong. And that's why last year, I founded a series of organizations that together are known as the American Pride Rises Network to defend and expand dei, because I fundamentally believe in the American Dream.

[Kenji Yoshino]

Now, the fact that I had the.

[Stacey Abrams]

Right and the ability to found these organizations that are challenging the cowardice of Meta and Walmart and McDonald's, that's the power of DEI, because it applies to everything from education to economic opportunity to electoral power. In short, it's about doing things right. But it's not just the people who've been historically blocked from opportunity who benefit from dei. The good news is that, and studies show that investing in DEI actually works for all of us. It's a net positive. NASA understood the public benefit of dei. We wouldn't have gone to the moon if not for a brilliant black woman mathematician, Katherine Johnson. Her work laid the foundation for the Silicon Valley titans and wannabe space explorers. You see, a lot of us have forgotten or never knew how important DEI was to our country. And with a second Trump administration about to begin, dismantling, DEI is a top priority for his administration and Project 2025. When they mock and lie about what DEI is, they are being very clear about their intentions to resurrect barriers to opportunity and cut off access to the American Dream. Now, it is tempting to hear these terrible headlines and give up, but here's where we come in. At Assembly Required, we believe that we can and should tackle the challenges that society faces, no matter how big they seem. In fact, the opponents of DEI are counting on us to not fight back. The best way to meet their opposition is by understanding what's at stake, speaking up about our support, and demanding our leaders take action.

[Kenji Yoshino]

So my next guest is so important because we have with us Kenji Yoshino.

[Stacey Abrams]

Kenji is a professor of constitutional law.

[Kenji Yoshino]

At NYU Law School.

[Stacey Abrams]

He is also the director of NYU's Metzler center for Diversity, Inclusion and Belonging. The center advances thought leadership by doing research and sharing other people's research on diversity, equity, and inclusion. Kenji, thank you so much for being on Assembly Required.

[Kenji Yoshino]

I've been trying to connect with you.

[Stacey Abrams]

To have this conversation for a minute, so I'm glad we got to do it today.

[Kenji Yoshino]

Thank you so much for having me.

DEI has been in the news a little bit lately. Apparently, it is responsible for airplane crashes, bridge collapses, the NBA failures, and the LA fires. Given the specter of DEI and the absurdity and asinine claims that have surrounded what DEI has, you know, fomented in our country, can you talk to me about why we should be defending and protecting DEI at this moment?

Well, my favorite person to quote on this without embarrassing you, Stacey, is you. So I think that the thing that makes me want to spit is when someone says that DEI is somehow un American. I heard you once give a speech, we will not name the location because it was a board meeting. Yes, but you gave a talk about how the value of DEI could not be more American. Because if we think, and I say this as a constitutional law professor, about the things in our country that we're proudest of, so many of them relate to expanding the circle of who matters. One of the things that you said that's remained with me is that our country began as a group of very propertied white male, landowning individuals who controlled everything. And the whole history of progress, whether that's the 13th, 14th, and 15th Amendments for race, the 19th Amendment for gender, the Chicana rights movement, the LGBTQIA movement, every generation has tried to expand who counts as we the people. If we're proud of the 14th Amendment and the equal protection clause, as I am, if we're proud of the 19th Amendment giving women the right to vote, which I am, I think we should also be proud about dei. I think it's so important to plug DEI into that earlier prestige discourse of who we are as a country. You did that beautifully in your speech. I'm just mirroring back to you what I heard you say to me.

Thank you. Let's talk about the current discourse around dei, and I want to start with the fact that the Daily show has had to mock this conversation twice in the last couple of weeks that we have seen DEI blamed for every potential failure or blip in the Matrix. Can you talk a bit about why in this moment, DEI is so threatening and so frightening to so many?

I think it's frightening because we are seeing such broad, irreversible trends in this country. Just to take a few details. I don't actually like stacey quoting the McKinsey study or this study because everyone begins to quarrel about the methodology or whether or not the data was right or what have you. I just want to take things that we know are true. In 2042, we'll be a majority minority country. That's already true with regard to race for the under 18 population. There's no racial or ethnic group that is the dominant group in the under 18 set. Since 2019, a majority of college educated workers are women. 20% plus, and this is Gallup, says that 20% of Generation Z self identifies as a member of the LGBTQIA community. The demographics of this country and the perceived demographics of this country are changing in ways that will make it unrecognizable for people who grew up in the era that you or I were growing up. And so I think one of the things that's going on is that people see the writing on the wall. They see that the demographics of this country are changing and that demography is a kind of destiny. They see that we're not going to be able to survive, much less thrive, unless we can talk across difference. But they don't want that world. They want the kind of world that kind of never was, but that they look back very nostalgically on. I think that that's what's funding so much of the backlash today.

We use different language to describe the same ethos. The popular term that most people have heard of is dei, which stands for diversity, equity and inclusion. The Metzler center actually uses diversity, inclusion and belonging. Can you talk about the idiomatic differences and then the similarities, why we should hold to the principles, even if we use different initialisms to describe it?

Absolutely. So I will say first that it's Meltzer Center, Roger Meltzer, our founder. I apologize, I get really mad at me if I didn't correct you there, but in terms of the terminology, I.

[Stacey Abrams]

Apologize, Roger.

[Kenji Yoshino]

But I. I think that really we're after the same thing. I think I can speak about it most directly with regard to my own center. We thought about diversity as just table stakes of just recognizing the diversity that already is. So diversity is just a fact, and it's inclusion that's the choice. We begin with diversity, and then the question is, you can have a diverse group of people, but if you're not doing anything to bridge the divides between you and them, then you're not going to have a successful organization. So I do think that one of the things that the proponents of DEI have to get better about is in just underscoring that it's not diversity itself that is going to automatically lead to better outcomes, it's properly managed diversity that will yield those outcomes. So diversity in and of itself is not going to do it. We're going to actually need affirmative inclusion strategies to make sure that everyone has a fair shake at flourishing in that environment. But even the idea of inclusion, Stacy, raises a question of who is including whom. We thought, well, what is the end goal here? And the end goal for us is belonging. I think that anyone, no matter where you are and the demographic divides that separate us as American society, I think that we can all understand that belonging, which we define as you have a stick stake in the community and the community has a stake in you, is something that all of us want and all of us can relate to. So even if I go back to Abraham Maslow's hierarchy of needs, where he has this kind of pyramid of the needs we need to get satisfied as human beings in order to go to a higher level of consciousness. He says, of course, food and water and shelter are the first and most immediate things that you need. But right after that, he says, belonging is what we need as human beings. We can't survive simply on food and water alone. We need to feel like we belong to something that's bigger than themselves. And whether that's faith, whether that's a common enterprise, whether that's work, you name it, it can be anything. But we all need that community where we feel like I am bigger than just me, and then other individuals are investing in me and care about what happens to me, me. And that sense of belonging is something that I feel like is so universal. And so in some ways, the project of DEI should be this universal aspiration of making everybody feel like they belong in a community and that the community cares about them. It's just that DEI has traditionally focused on the groups that have not had easy access to that. And I think that dominant groups, historically dominant groups, have. Have either said, well, we already feel included, we already feel like we belong, so we don't need to care about this. Or alternatively, they say, just because we belong to this dominant group, I don't feel like I belong. Just because I'm like a straight cisgender white man doesn't mean I feel like I belong in the world. In fact, I often feel excluded and marginalized in this world. That person, too, is saying, I have barriers to belonging. And to that person, I want to say, well, let's hear you out. Like, what is the barrier and how can we help you remove it? You're part of this project, and you will benefit from this project as well.

I love that framing of it because part of my approach to dei, when you and I met at that board meeting, it was after I'd started a group of organizations that we refer to as American Pride Rises. We call it the American Pride Rises Network. And the intention was to think about how do we all belong in the conversation about the American Dream? This very ephemeral notion of the idea of an American Dream. It looks different for every person, but we all believe that there is this notion. There are some people who believe that the notion exists, but they'll never get to participate. There are others who believe that the pathway is their birthright. And so a lot of the conversation for me and for our organizations has been around how do we anchor the conversation of DEI and to your point, the inclusion and belonging notions of DEI around how everyone can move towards their version of the American Dream.

[Stacey Abrams]

The way I think about it is.

[Kenji Yoshino]

That there are three pieces to it in an American society that we all have some say in. So one is education, what you know. The second is the economy, what you do. And the third are elections. Who's in power? Who controls what happens next? One of the things that I love about your work is that you tackle all of those pieces in different ways.

[Stacey Abrams]

Can you talk a bit about the.

[Kenji Yoshino]

Policies and the practices that people might not even realize fall under DEI under that umbrella? When you're having that conversation with the white guy who feels left out, how do you bring that person in? How do you talk about where DEI sits and how we all get to the American Dream?

It's a very long question, but thank you for that. So I had a very recent occasion to reflect on this because I was put on this bipartisan panel with an adamant opponent of DEI and Chatham House Rules applied there. I won't name the individual, but if I did, you would recognize the person as a die hard opponent of dei. I thought sitting in that green room, what is my goal here? Because obviously I'm not going to convert this person over to my side. But what can I convince him of, given everything that I know that he said in the past that I disagree, agree with? Is there some sort of piece of it that's important, but nonetheless, I can move him on. What I realized is that he had stated over and over again that all of diversity, equity and inclusion was illegal. And so he just thought after The Supreme Court's SFFA decision in 2023, which is the case that abolished affirmative action on the basis of race and higher ed, that all of diversity, equity and inclusion was odd. So when I sat down with him, I started out with this gambit and I think this goes under the employment rubric of your three E's. And I said, just help me with this hypothetical. So in 1970, which is actually not very hypothetical at all, in the 1970s, 5% of symphony orchestras were women. And now that number is much higher. It's a plurality, like 40% or something like that. And the fix was that they had women and men audition behind screen so that you couldn't tell the gender of the person who was auditioning. And that caused the number of successful audition needs to skyrocket. So I said, is that illegal? And he said, no, of course not. That's just removing bias from the system. It's literal gender blindness. Title vii, which is the statute that regulates employment discrimination, would have nothing to say about that. That would be totally consistent with every anti discrimination norm in the United States. So I said, I don't mean this as a gotcha, but I think you have to choose. I think you have to choose between saying all of DEI is illegal and saying that that practice that I just described is legal because that practice is dei. Like what do you think we're doing when we're advocating for dei? Like a huge tranche of what we do is debiasing people and removing biases from the picture. I think we need to distinguish between lifting DEI and leveling dei. And what I mean by lifting DEI is the old way we used to talk about dei, the affirmative action way, which is to say here is a historically marginalized group and that group has been so deeply subordinated that in order to give them an equal opportunity, we have to target them and lift them up so that they'll be on an equal foot footing with Everybody else and I, you know, this may be heretical, but I actually still believe in that. It's just that I think that that does carry legal risk. So I think that that's what my party opposite, my friend on the other side here was taking aim at when he said, all DEI is illegal. But the leveling form of DEI says, well, wait a minute, there are lots of biases in the present day. And so why can't we actually take those biases out so that everybody has a genuine playing field? So that form of DEI has a very different tenor to it, which is to say talent is everywhere, opportunity is not everywhere. And the way in which we close the gap is to de bias environments. And that's a project that we're calling leveling DEI and the leveling stuff. As a lawyer, I know you're a lawyer too, I think we can agree that the leveling stuff is never going to be illegal. No Supreme Court, no matter how conservative it gets. I, I don't care if you get sort of nine Justice Alitos up there. They are never going to say that taking bias out of a system on the basis of race or gender or what have you is illegal, because that's exactly what Title VII of the Civil Rights ACT or section 1981 is trying to do.

[Stacey Abrams]

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[Kenji Yoshino]

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[Stacey Abrams]

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[Kenji Yoshino]

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[Stacey Abrams]

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[Stacey Abrams]

I want to touch on.

[Kenji Yoshino]

Your lifting piece, which is the issue of what's legal and what's not. And I know there has been this belief since Students for Fair Admissions that all of DEI is dead. And when you look at the number of companies, not as many as people would like to believe. You've got 15 maybe out of 500 in the Fortune 500 who've retreated, but you've got 4,000 public companies in this country. And so I don't want to overstate what's happening, but there has been this legal risk analysis that says that because Students for Fair Admissions put these limits on affirmative action in education, all of DEI is dead. I firmly, categorically and wholeheartedly reject that idea because even in that decision the Supreme Court said, yeah, except for military academies, you can still do it. And they spoke not at all to the issue of funding in terms of scholarships and things like that. So I would love for you to spend a little bit of time talking about legal risk assessment, because this notion that it's all dead because one thing fell is not the same as there are legal risks. But here's how to evaluate those risks. And I know you can't give legal.

[Stacey Abrams]

Advice on this podcast, but I would.

[Kenji Yoshino]

Love for you to talk a little bit about the framing we should use when we're thinking about what the legal risk is.

I'd love to. I'd first like to begin, though, by just reinforcing what you said, which was so important about the very public retreat by some companies getting rooted abroad in the news and that seeming to to occupy so much of people's mindshare. So it's not just that it's a tiny sort of nit of an iota of a scintilla of Fortune 500 or 4000 public companies that have retreated publicly. So it is the Lowe's and the Walmarts and the Home Depots of the world. But the vast, vast, vast super majority of companies in the United States have either stayed strong explicitly, like the board of Apple or Costco. And I, I want to call both of those companies out to lob them. But it's also that even the companies that have publicly retreated, if you actually look at their statements, I know you have, but some of your listeners might not have it's actually not that they're retreating wholesale from dei, right? They're not saying we're not going to do any form of dei. They're just saying these are the forms of DEI that we think are too risky and so we're not going to engage on those anymore. But all these other things like full steam ahead. We might not participate anymore in this particular survey, but we're still going to have advancement programs or unconscious bias trainings or what have you. I fault a little bit the media for this because there is a kind of it's much more interesting to have the man bites dog story than it is to have the dog bites man story. The exceptions are getting a lot more news than than the kind of vast super majority that are staying the course. But I also want them to look and parse those statements more carefully to understand that even the retreats are not really full retreats. So that's the first thing of let's just understand what empirically is going on. And just to add a bit of editorial content here, I worry, Stacy, that part of what's going on is this dual messaging where they're just like, we actually want that headline as a company because that will get Robbie Starbuck off our backs. And so all these anti DEI lawsuits will no longer be coming our way. But then when our people or our potential employees or our consumers come after us, we can always point to the statement that was much more nuanced and said we were totally misdescribed in the media. And so they can have that kind of dual messaging. But you're asking me, I think, for a deeper analysis of what the law actually says. And again, I agree with you, which is that if you look at the students for fair admissions opinion, it's actually a much more modest opinion into what it renders illegal, even under a really aggressive reading. So if you parse what the Supreme Court says, there are really three Ps. You have your three E's. I have my three Ps of what needs to be satisfied for a program to even be remotely risky. And the three P's has to be a preference for a protected group with regard to a palpable benefit that's specific to Title vii. So what does a preference mean? Again, anything that's leveling, anything that's taking bias out of the system is going to be completely fine. So if I say everyone in this hiring process has to go through unconscious bias training before they hire somebody, because we know that all of us, just as human beings, not because they're good people or bad people, but just because if you have a brain, you're biased. As my colleague David Rock likes to say, that if you are just hiring without any kind of awareness of your unconscious bias, there's going to be like, likes like bias. You're going to dissimilarity bias. You're going to hire the person who's a mini me who reminds you of yourself. So we're going to have unconscious bias trained to get rid of all of that. That's leveling rather than lifting. So there's no preference that's being given. It's really just a removal, an unfair preference that I would otherwise exhibit. So first of all, there has to be a preference. Second of all, there has to be a protected group. So that means it has to be on the basis of race or gender or national origin, some group protected by Title vii. So Title VII prohibits discrimination on the basis of five classifications which are race, national origin, color, religion, and sex. Since 2020, sex has been interpreted to encompass gender identity and sexual orientation. So those are the protected groups. But there are lots of other groups like veterans, like first gen individuals, like people who have straightened socioeconomic means or statuses that are completely unproblematic because they're not covered by these statutes. And then there are other characteristics. And this is something I have to clear up a lot that are covered by statutes like age or disability or the statute itself allows for asymmetrical treatment of the group so that you are allowed to have affirmative action for people with disabilities or people over 40, even under the plain terms of the Americans with Disabilities act or the Age Discrimination Employment Act. So preference protected group. And then finally, there has to be a palpable benefit. So I can't say just because I'm a busybody or just because my feelings were hurt, you know, if my colleagues have a women's only lunch in order to think about the status of women on the faculty, I can't say, oh, that's sex discrimination, because it hurt my feelings. Under Supreme Court precedent under Title vii, there has to be some adverse employment action, so it has to touch on me in some way. So unless there's a preference for a protected group with regard to some palpable benefit, you're totally fine. So unconscious bias training is fine. Explicit affirmative action on first gen status is completely fine. Like, I can't go and ensue simply because I'm a busybody or my feelings got hurt. Right. So you're fine with regard to that, you know, happy hour where you take your LGBT colleagues out for drinks afterwards, that's just not going to be palpable enough to be harmful, right. To your cisgender or straight, you know, individuals in the workplace. So the takeaway is I want everyone to, like, engage in that risk assessment. To say, in any other context of human endeavor, we would never say, oh, because there's some colorable risk here. We're not going to engage in this practice at all. Imagine if we were launching a product and I said to you, oh, as your attorney, Stacy, I have to tell you that there's some IP risk or there's some product liability risk. You would never say, oh, horrors, like, we could never go forward with that product. You would instead, instead say, okay, so let's engage in a kind of balance of those risks against the benefits and try and mitigate the risk, but not let it be completely a bar to going forward with something that we really care about, something that's really important to this organization or to this community. So my plea is to engage in that risk analysis. And we have a resource that's available for free called Advancing DEI at the Meltzer center, where we've analyzed all of the federal cases that have been brought against DEI in plain English. The whole point is you do not need to be a lawyer in order to read these cases or to understand the issues. And so if you want to do a double click on the risk assessment that I've just described. Please go there.

[Stacey Abrams]

Excellent.

[Kenji Yoshino]

Can you give us the website?

Absolutely. So, actually, the easiest way to get there is advancing DEI and Meltzer. M E L T Z E R. If you just Google that, it will come up.

Awesome. Let's turn to the most pernicious threat to DEI, which is Donald Trump and Project 2025 taking abject power in about a week. We know that there have been coordinated attacks on dei. You listed Robbie Starbuck, there's Ed Blum, there's Stephen Miller, there's this entire consortium of anti DEI organizations that were, I think, very effectively covered by, I think, Nick Confessori and his article in 2024 about the interplay of organizations attacking DEI. And now we will have a president who has been avowed in his distaste for DEI and has made it one of his central premises. And then we know Project 2025 mentions DEI on every. Looks like every other page. It's not quite that much, but it's pretty close. Let's go through some of what you expect the incoming Trump administration to do to oppose DEI and to roll back this progress that we've made since the Revolutionary War, both lifting and leveling for folks in this country.

I think that one of the first things that we'll see, maybe even on day one, is a revival of the executive order that that existed before in the first Trump administration that bars DEI when done by any sort of federal governmental entity. And so I think that we could easily see that. And then I think there will be various moves. Probably they would need to be legislative, but given that there's a trifecta of Republican control, it's not beyond kind of imagination that something like the dismantling DEI bill would actually be enacted, and that says essentially private forms of DEI are going to be contested or challenged. I think in all of that, one of the things that we have to remember is that the first executive order that Trump enacted was challenged on First Amendment, free expression, free speech grounds. And so. So I do think that we should really be careful about misdirection. I think that the Trump administration will give a lot of ballast and energy behind the anti DEI movement. So we'll expect we can expect more lawsuits to be filed. But, you know, short of just repealing these civil rights statutes altogether, which, you know, this hopefully will not prove to be hopelessly naive, but I don't think they're going to do that. But short of doing that, if they don't do that, then the final word is going to be still with the Supreme Court, because they could do real damage and saying there's no such thing as disparate impact analysis. And we can talk more about what that means. It basically means that there doesn't need to be intentional discrimination, which is a current law, so long as a policy has a disproportionate impact on a protected group. So even if I didn't intend to hurt black individuals with a particular policy, if the vast disproportion of the injury sort of lands on black individuals, then I have to have a business justification. So they may go after that, and that would be deeply consequential. But I don't think that they're going to say Civil Rights act of 1964 is a bad idea and we're going to repeal it entirely. And to the extent that they don't do that, Stacy, I still think that it's ultimately going to be judicial interpretations of the Civil Rights act that are going to be the most consequent. So I don't want to underplay the new administration coming in. I think they'll try to do a lot of things, and I think that they will use their bully pulpit in order to accomplish a lot of stuff. And there needs to be counter mobilization. I too, read the Composori piece with great interest. And one of the things that struck me, I don't know if you felt this way, is that they're all talking to each other. They are really networked. So my sense is that Robby Starbuck is talking, talking to Christopher Ruffo is talking to Tom Cotton, Senator Cotton is talking to whomever.

Steven Vice President Vance yeah.

And I don't think we're doing the same degree of mobilization on our pro DEI side of the ledger. And that's not like a criticism, right? I mean, it is a criticism, but it's not like I'm not wagging my finger because I understand why that happened. It's because we held the status quo for so long that we could just stay in our lanes and do the work that was in front of us. But now I think that there's a real need for people like us to have conversations like these, to mobilize together, because there are a lot of people who defend our values. It's just that we're not as networked. The other thing that was really interesting about that article was that you kind of scratch the surface of what they believe and what they say that they're for and what they're actually for seem to be two really different things. This isn't really about freedom of speech or expression. This is really about keeping historically dominant groups dominant. And I think that the American people, particularly for all the demographic reasons I've just described, are going to have a limited appetite for that.

[Unknown]

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[Stacey Abrams]

I want to go back to something.

[Kenji Yoshino]

You said, your second P, which is protect a class and then what a Trump administration can do. Because I think one of the groups that face incredible damage in the attacks on DEI are the disabled, and yet that community of folks are often left out of the conversation. Part of what I wonder is are there legal or communal opportunities for us to push the envelope and make certain that more people understand that DEI isn't just about not liking black and brown people, it's not just about women, too many women going to college, that this is an attack on so many other parts of who we are that if we can highlight who else is under threat, we can raise the consciousness and therefore raise the intention of fighting back. Can you talk a little bit about how that plays out in your conception of pro dei, of this not just leveling, but leveling up?

Yes, I would love to talk about that. And I think that this sort of broadening the coalition is kind of don't let a crisis go to waste kind of moves that we can make here. So we are DEI is being challenged and one of the ways in which we can show the value of the work is to advert to the universal, as I was trying to do at the top with Maslow's hierarchy of needs. Diversity or belonging is something that we all crave as human beings. But one of the things that I think we need to be really careful about is jumping too quickly to the universal of if I move from oh, I'm not going to stop talking about LGBTQ rights and I'm going to start talking about our universal humanity and Kumbaya and so forth, that has a little bit of the tinge of I don't want to talk about Black Lives Matter, so I'm going to talk about All Lives Matter. And so that can't be right. And so I think that the pathway to finding the Universal is going to other cohorts and to include other cohorts within the tent of who's included under dei. So, historically, I agree that DEI discourse has itself marginalized individuals with disabilities. This is a huge cohort at last estimate. I always do this through the case law, so forgive me if this is slightly out of date because it's an older case. But one of the reasons why the court was reluctant to give people disabilities too much protection is that they thought the judiciary can't do this on its own. It has to be Congress, because we're talking about 43 million people within the country. So it's a huge group of people distributed entirely throughout the population in a very even way. So everybody knows somebody who has a mental or physical disability. Whether they knowingly knowing know somebody or not might be a different issue, but we all, you know, touch somebody with a mental or physical disability or illness. You're allowed to engage in specific accommodations only for people with disabilities. And in fact, this is one of the ways in which I communicate about the value of equity of like, it would be ridiculous to give a sighted person and a visually impaired person the same book and text. It would be equally ridiculous to give them the same book in Braille. We would say we need to actually accommodate both the sighted and the visually impaired person in order to give them equality of opportunity. That's what we're talking about when we're talking about equity. I think most Americans understand the fundamental principle of fairness that's being underscored there when we say dissimilarly situated people can be treated differently in order to be treated equally or fairly.

Well, another one I want to add to the mix is the military.

[Stacey Abrams]

We know that the military was the.

[Kenji Yoshino]

First formal part of the federal government to desegregate. It has long been the tip of the spear, no pun intended, of dei. And today, when we are taping, Pete Hegseth is sitting before the Senate committee to determine his appointment as the Secretary of Defense. This is someone who has very openly disparaged women in combat. He has unfortunately been part of the MeToo movement.

[Stacey Abrams]

But I want to talk for a.

[Kenji Yoshino]

Second about the real world implications of someone like P. Hexseth becoming the Secretary of Defense in a Trump administration that is anti DEI in a Project 2025 world that has made restoring the patriarchy of the military to its, I guess, Revolutionary War era construction. Can you talk a bit about what worries you, but also what opportunities you see for DEI and the military going forward?

First, I think you're underscoring something that I was inattentive to in my earlier comment about the change that this new administration could wreak because it's not just about policies, it's about people. So I don't want to at all undersell the impact that this new administration is going to have on the vector of who is actually going to be sitting in these chairs and what kind of signal are they going to be sending and how are they going to be using their positions of power and their bully pulpits in order to advance or not particular norms or policies. That's going to be a huge impact, I guess, against all of that. A couple of things. I mean, I thought the segue into this was going to be we're going to talk about the military because I left out veterans as another cohort and I want to go back and pick that up because veterans are a huge cohort. They're individuals who have served our country honorably and deserve to be included and to belong. And oftentimes we have fallen short of that promise. And so that too is something that we need to really lean into because once again, there is no. You can engage in formal affirmative action for veterans and that is completely legal. So that's thought number one. But thought number two is I want to be. I always get sort of chastened by my executive director on this. I want to be really honest and transparent here where I say demography is, is destiny. Right. So, you know, the optimistic note is how far can somebody go if I really believe that, you know, the people that I want to promote or associate with or have working for me need to be white, cisgender, straight men who are able bodied. I mean, increasingly it's going to be like a smaller and smaller tranche of the population. How on earth can I expect to get the best talent or the best colleagues if I'm not willing to be inclusive as a leader, as an employer or just as an ordinary member of the community? If the idea is, oh, the law prevents us from doing that, the law absolutely doesn't prevent us from debiasing our environments. If anything, what I expect, and I hate to call this a hopeful note because I don't think people suing each other is so hopeful, but the organizations that run away from DEI are going to be in for a world of hurt from the other direction because traditional Title VII plaintiffs like women or people of color are going to sue these organizations that say, we want to go back to a 1950s America and say, you've discriminated against me on the basis of race or gender. And I was just talking to a former commissioner of the EEOC and I was asking her, I want you to be totally fair about this. So after sffa, how many of the lawsuits are coming from traditional plaintiffs and how many are reverse discrimination claims? Right. So I didn't want to, I wanted her to count, beginning with sffa, because that clearly led, would lead to an uptick. And she said, still the vast, vast, vast super majority of claims that are made against employers or against governmental entities are from what we'll call the left rather than from the right, from traditional plaintiffs like women or people of color who have been sued. If you've gotten rid of all your DEI policies, then you've lost your line of defense against those lawsuits as an employer or as a governmental entity. Because usually what happens is if I get sued and someone says, you discriminated against me on the basis of race and gender, I sort of cough up my track record and say, look at all the DEI policies that I've had to make sure that there wasn't bias in this workplace. Well, if I retired all those policies, good luck to me, right? You know, if you get rid of all your DEI policies, people are going to sue the pants off of you. Right. And that if you talk to the eeoc, the vast super majority of claims are still coming from traditional plaintiffs rather than from the so called reverse discrimination plaintiffs.

I believe the framing I use is that demography is destiny, but it's also opportunity. And given that in this moment, 17 years from now, the racial, ethnic and gender composition of this country will not be what it was, I want you to help us get to 17 years from now. So one thing we try to do here at assembly required is give people practical, actionable things to do. So I'm going to ask you two questions. One, what language? And I think you've given us a lot of rich opportunities here. What language should people use when they talk to their own families and friends about the importance of dei? Give us a quick elevator pitch for dei.

My elevator pitches one sentence and I think it shouldn't be longer than that, which is talent is everywhere, Opportunity is not everywhere. Diversity, equity, inclusion closes the gap so that everyone can have a shot, period, full stop.

Awesome.

So like, if someone says, well, I don't think talent is everywhere, then we're having a totally different conversation. I take this to be the point of the Confessoria piece, right? To say, like you're saying, merit, merit, merit. Okay, like merit, lots of merit. Shine, right? Let's find merit. Let's give merit an opportunity. But I think most Americans would agree that talent is everywhere. So if you believe that talent is everywhere, if you believe that opportunity is not everywhere, which I think are both incontrovertible, then isn't there a need to close the gap just in the name of fundamental human decency and fairness and then in a more self interested way for our loved ones and people in our families and our community, communities to give them a fair shot so that we can all benefit from the talents that we know that they have. Like all of us have someone we care about, we know is unbelievably talented, but we worry that they're not going to get a fair shake to express that talent simply because of non merit based aspects of their identity. So that's my elevator pitch. Talent is everywhere, opportunity is not. And DEI is what closes the gap.

Excellent. And then we're going to close with this. What are one or two actions that individuals can take to support DEI in their communities, in their workplace, but these.

[Stacey Abrams]

Are things that you think are either.

[Kenji Yoshino]

Underrated or underestimated as actions they can take.

Yes, I will begin with something that you got me with the underappreciated point. So I do a lot of work on allyship and so being an ally was going to be my initial answer and speaking up. So when someone says, oh, the bridge fell down, that was because there was a DEI mayor and the mayor in question said, I think DEI stands for duly elected incumbent. So he won my heart when he said that. So that's beautiful. But making sure that you speak up and you sort of clap back, right. If it's, you know, if someone says DI stands for didn't earn it, I think we need to have the. Well, that's interesting because I think DI means doubly earned. It. Being an ally to me means being an ally to the person that you regard to be the source of non inclusive behavior. So I love Loretta Ross's work about calling people in rather than calling people out. So I think oftentimes in these very polarized times, the instinct is to say, oh, if you say something against dei, like it's not just that I'm going to defend the affected person or the program, it's also that I'm going to come down on you like a ton of bricks and I'm going to make you feel like a terrible person. That to me is not either tactically or morally right because I think all of us will be the source of non inclusive behavior at some point in our lives. I know I have been. I'm just sort of waiting with not particularly eager anticipation for the next time I mess up and I say something that is non inclusive, I misgender a colleague. I confuse two students with each other simply because they share the same ethnicity. We've all done these things that put us in that bad books of dei. If we're all going to be sources of non inclusive behavior, we have to ask how do we want the people around us to behave? One of the things that I hope is happening is that we've seen a waning of cancel culture where people say you made one mistake and so therefore we're going to ostracize or punish you. And this is where I think I get a little bit controversial because I think a lot of people say, well, just cancel culture is just consequence culture, so why are you against that? And of course if it's something egregious like illegal harassment or discrimination, you don't need to be an ally to the source. But if it's like a run of the mill error where somebody is making a statement and they've just messed up, then I think it's really important to extend grace to that individual and to surprise them by saying I'm really interested. And what you just said, could you say more on that? I want to understand that rather than saying your Persona non grata. Because what I worry about, Stacy, is that when we come down on sources of non inclusive behavior like a ton of bricks, that that becomes its own villain origin story. So many people I know who are adamantly opposed to DEI today, yesterday were kind of on the fence, but then they just got burned too badly or they felt that they themselves got treated unfairly with regard to DEI issue. And I think particularly in this moment when it just feels like I don't want to empathize, I want to smite, right? This is Melissa Harris Perry talking about the kind of constant dilemma of the good progressive deciding whether to fight or to empathize and be kind. I think we need to choose, but I think we need to keep that kind of space of empathizing, of being generous, of calling in rather than calling out open.

Well, Kenji, you have made the wait well worth it. Thank you so much for calling us in, for giving me three P's I can now repeat for correcting my mispronunciation of your center. And most importantly, thank you for sharing, I think necessary insights as we head into this new administration on how we can all be a part of belonging. Thank you.

Thank you so much for having me.

[Stacey Abrams]

Assembly Required is a show about learning more and taking action, realizing that we can't solve everything at once, but if we stick together, we can get a.

[Kenji Yoshino]

Lot of good done.

[Stacey Abrams]

How we do it is the focus of this segment, which we like to call our toolkit. At Assembly Required, we encourage the audience to be curious, solve problems and and do good. Let's start with being curious. Sign up for emails at americanpriderisesprnetwork.org at American Pride Rises, we're working to provide accurate information about diversity, equity and inclusion and to defend DEI at the state level. You can also read our team's takes on the latest DEI related news in colleges and companies. Number two Solving the problem of attacks on diversity, equity and inclusion Begin with us embracing the term DEI or its counterparts. Don't get distracted by arguments like let's just change the name. Opponents don't care what we call it, they care that it exists. As we've learned from the incoming president, mockery is a tactic to get us focused on the right wrong thing, like a magician trying to distract the audience. The name isn't the problem. More people making progress is. So let's solve this problem by responding to attacks on DEI by turning the tables. Ask which groups to be discriminated against or who shouldn't have access to the American Dream. Next, how can you do good? First, look carefully at any proposal at your workplace or school that involve the words dei. Ask questions about who will be impacted and how the harms will be addressed. For example, do you want to advocate for your company or workplace to primarily focus on inclusivity or diversity internally? Do they have the capacity to be more externally vocal about inclusion? And then three Find out if there are employee resource groups or workplace leadership opportunities where you can become a stronger advocate. Now, change often begins at home, so number four Use some of the examples we shared in today's episode to have tough conversations with the people around you. Learn more about why they feel the way they feel, and figure out how you can meet them where they are with stories that they'll find uniquely compelling. Talk about veterans or someone with a disability, but expand the conversation and find a way to bring other people in. As always, we want you to share your actions and your questions, so I'd love to hear examples of ways you've taken action or questions and topics you'd like to see us talk about here on Assembly Required. So send us an [e-mail] or leave us a voicemail. Your question, questions and comments might be featured on the pod. Our number is 213-293-9509. That wraps up this episode of Assembly Required with Stacey Abrams and I'll meet you here next week. Assembly Required with Stacey Abrams is a Crooked Media production. Our lead show producer is Ilona Minkowski and our associate producer is Paul Velasco. Kirill Palaviv is our video producer. This episode was recorded and mixed by Evan Sutton. Our theme song is by Vasilis Fotopoulos. Thank you to Matt De Groat, Kyle Seglin, Tyler Boozer and Samantha Slosberg for production support. Our executive producers are Katie Long, Madeline Herringer and me, Stacey Abra.

[Unknown]

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