Trump wants to end affirmative action. Here’s how he plans to do it.

When the Heritage Foundation think tank drew up an expansive presidential transition plan in anticipation of Donald Trump’s return to power, one of its chief policy goals was eliminating affirmative action, which Project 2025 dubbed "affirmative discrimination."

For decades, federal contracts to serve hot meals or manufacture missile defense systems came with strings. An executive order President Lyndon B. Johnson signed in 1965 required private companies to take proactive steps to ensure that women and people of color have equal opportunity in the workplace.

In one of the first official acts of his second term, Trump rescinded Johnson’s order. Now he’s angling to abolish affirmative action altogether.

His target is Minnesota’s affirmative action policies that the Justice Department began investigating last July.

State and federal civil rights laws prevent hiring or promotion decisions based on race or gender, but employers are permitted to create affirmative action plans in narrow circumstances to address workforce disparities in historically segregated jobs.

Like in many states, Minnesota agencies must establish hiring goals and timetables to address underrepresentation of women, people with disabilities and Black, Hispanic, Asian, Pacific Islander, American Indian or Alaskan native workers.

The DOJ filed a lawsuit in federal court in January claiming the state’s efforts to fight discrimination in the civil service are themselves discriminatory.

Attorney General Pam Bondi certified the case as a matter of general public importance in a bid to put it on the fast track to the Supreme Court.

“Making hiring decisions based on immutable characteristics like race and sex is simple discrimination and the Trump administration has no tolerance for such DEI policies,” Bondi said in announcing the lawsuit.

Brian Evans, press secretary for the Office of the Minnesota Attorney General, declined to comment.

A ruling in the Trump administration’s favor would upend decades of civil rights policy with potentially far-reaching consequences for women and people of color who have already seen their advances eroded by the nation’s sharp pullback in diversity policies, legal experts say.

“If that’s what the court ultimately does then that's the end of private-sector affirmative action plans as we’ve known them,” said Sachin Pandya, a professor at the University of Connecticut School of Law.

Affirmative action from Kennedy to Trump

Toppling affirmative action in the workplace has been on the wish list of conservatives since the Civil Rights Movement era.

In 1961, President John F. Kennedy urged government contractors to “take affirmative action” to hire workers “without regard to their race, creed, color or national origin” as part of a growing national campaign to end the widespread discrimination that had stripped generations of Black people of wealth and opportunities for job advancement.

Contractors mostly ignored Kennedy’s executive order until Johnson signed the Civil Rights Act of 1964 − sweeping legislation that included a section, called Title VII, making it illegal to discriminate in the workplace. A year later, he strengthened Kennedy's executive order with one of his own aimed at reversing the effects of Jim Crow and other policies that openly discriminated against Black people in the workplace.

Private-sector employment that was mostly segregated began to integrate, and Black workers began landing skilled positions with upward mobility. Other racial minorities and women made progress, but the practice also drew controversy.

When President Richard Nixon adopted an affirmative action program for federal construction projects to redress race discrimination in the building trades in 1969, government contractors sued, alleging illegal hiring “quotas” that violated the Civil Rights Act. They lost.

“There’s been a quota system in place for a long time, and it’s been very effective,” Secretary of Labor George Shultz said at the time. “Zero. That’s the quota.”

But the affirmative action backlash only picked up steam. The term “reverse discrimination” became a popular way to refer to the perceived harms to White Americans in a troubled economy. The Heritage Foundation railed against numerical "goals and timetables" that it said were a euphemism for hiring quotas.

During his presidential run, Ronald Reagan campaigned against affirmative action and promoted a new era of “colorblindness.” Once in office, he moved swiftly to eliminate affirmative action but abandoned efforts to rescind Johnson’s executive order after pressure from civil rights groups, business leaders and some Republicans.

The Reagan administration’s own studies found that affirmative action was effective, according to Melvin Urofsky, author of “The Affirmative Action Puzzle.” Urofsky concluded that the number of White men harmed by affirmative action was “miniscule.”

Does affirmative action discriminate against White people?

Still the legal tug-of-war raged on.

Under federal law, affirmative action plans must be temporary measures that work to eliminate race or sex imbalances in segregated job categories while not trammeling the rights of other employees.

Some White workers alleged Black Americans were getting preferential treatment at their expense. Lawsuits brought by Brian Weber in 1974 and Paul Johnson in 1988 challenged affirmative action plans in their workplaces, but the Supreme Court upheld the practice.

Weber was passed over for a skilled training program at a Louisiana mill even though he had more seniority than nearly all the Black workers chosen. Johnson was denied a promotion to road dispatcher for a California transportation agency because no women were employed in that category.

In recent years, the courts chipped away at affirmative action in American life − most significantly when the Supreme Court ruled in 2023 that colleges' consideration of race as a factor in student admissions was unconstitutional.

"Eliminating racial discrimination means eliminating all of it," Chief Justice John Roberts wrote in the court's majority opinion.

“The Supreme Court left us with a weird legal landscape in which affirmative action in higher education was unlawful but affirmative action in the workplace was technically lawful,” said David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion and Belonging at the NYU School of Law and co-author of “How Equality Wins: A New Vision for an Inclusive America.”

“With this new Minnesota lawsuit, that could change,” he said.

What makes opportunity equal?

The Supreme Court’s conservative majority has signaled its willingness to abandon the decades-old, precedent-setting rulings. With the Minnesota lawsuit, the Trump administration is betting it has the right test case to overturn affirmative action under Title VII.

“For far too long, courts have allowed employers to discriminate based on race and sex when it is packaged as ‘affirmative action,’” Assistant Attorney General Harmeet Dhillon, who runs the DOJ’s civil rights division, said in announcing the Minnesota case. “This case is the next logical step.”

Nick Barry, senior counsel with America First Legal, the advocacy organization founded by senior White House adviser Stephen Miller, said he's optimistic the case “will send race-based discrimination in the workplace to the dustbin of history.”

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Barry told USA TODAY.

Edward Blum, who has worked for years to repeal affirmative action and spearheaded the Harvard lawsuit, has brought numerous legal challenges to race-based preferences in the private sector.

Blum said the Minnesota lawsuit “correctly recognizes that government policies which classify, limit, or favor individuals based on race or sex undermine the core promise of equal opportunity for all Americans.”

But David Oppenheimer, a UC Berkeley law professor and director of the Berkeley Center on Comparative Equality and Anti-Discrimination Law, said overturning affirmative action would create more inequality and less opportunity in the workplace.

At risk, he said, are not hiring quotas or set-asides but good faith efforts to include qualified people of color, women, military veterans and people with disabilities in the hiring pool.

Affirmative action plans that conduct rigorous workforce analysis to identify barriers to equal opportunity are still needed today as Black and Hispanic workers face discrimination at a rate that has not declined since the late 1980s, according to Oppenheimer, author of "The Diversity Principle: The Story of a Transformative Idea."

The most recent USA TODAY data shows that Black Americans are outnumbered 12 to 1 by White people in executive roles.

“If you don’t have a system of checks to encourage or require employers to examine their procedures and to question their decisions when their decisions appear to be biased then you will have more and more discrimination and fewer and fewer opportunities for women, people of color, people with disabilities, people who are negatively stereotyped,” Oppenheimer said.

Already many employers have modified or eliminated diversity efforts under pressure from the Trump administration. Eliminating affirmative action would jeopardize 60 years of civil rights advances in the workplace, Damon Hewitt, president and executive director of the Lawyers' Committee for Civil Rights Under Law, told USA TODAY.

“For too long, Black and other communities of color have been disproportionately impacted by harmful policies and practices. Rather than addressing this issue and promoting fairness, this administration is allowing racism to continue unchecked,” Hewitt told USA TODAY. “In fact, it is inviting moves that close off mechanisms that are fair for everyone while providing opportunity to people of color and women under the misguided notion that civil rights laws are harmful to white people.”

The Supreme Court knew that racism and sexism would persist unless employers took voluntary, proactive steps to identify and address workplace bias, according to Hewitt.

“The creation of a very narrow remedial exception was necessary to make the promise of Title VII’s protections real,” he said. If the Supreme Court overturns Weber and Johnson, it “would essentially be an invitation to discrimination.”