SEC scrubbed guidance on DEI in asset manager selection from website

The Securities and Exchange Commission has purged guidance from its website regarding fund manager diversity, but it was hard to find even before President Donald Trump's second term.

That pullback from promoting diversity, equity and inclusion in asset management comes as part of the Trump administration's executive orders targeting "DEI" programs. And it underscores the confusing current state of federal efforts to ensure that more women- and minority-owned fund firms get a fair shot at doing business with large government pensions and retirement plans. For advocates, such programs open doors to capital and to rewarding careers as financial advisors or wealth and asset management professionals and, in some cases, the enforcement of crucial civil rights laws. To Trump's supporters, DEI has expanded access for some at the expense of others, to the point that consideration of factors involving race, gender and other identities has turned more important than merit in, say, hiring or the awarding of contracts.

The SEC has removed an October 2022 "frequently asked questions" memo explaining how the fiduciary duty applies to the use of DEI criteria in the selection of asset managers, according to a recent study by the U.S. Government Accountability Office, an independent watchdog agency that reports to Congress. The SEC issued the FAQ during President Joe Biden's administration, at which time critics questioned its importance and obscure previous location on the agency's website. Now, with so many aspects related to DEI in administrative or legal limbo, the way forward after small but notable progress in opportunities for women and minority financial professionals looks anything but clear.

"I'm optimistic, and that's because we've seen this movie before," said Dorien Nuñez, the president and director of research with consulting firm OMNI Research Group and co-founder of OMNI Wall Street Advantage, a chartered financial analyst training, mentoring and internship organization. He cited the Reagan administration's unsuccessful push to eliminate the Small Business Administration in the 1980s.

"This is definitely more aggressive," Nuñez said. "ESG is flourishing globally. DEI is flourishing globally. It's just the political will and megaphone that is fighting against it so much, so vocally."

For impact managers whose strategies seek to close wealth gaps through clients' investment portfolios, the administration's anti-DEI actions are "really hampering their marketing efforts" and capital-raising, said Will Gholston, a CFA and certified financial planner who is the vice president of investments with New York-based registered investment advisory firm Re-Envision Wealth. At this point, any fund manager "would definitely think twice before bringing that type of product to market in this environment," he said.

"I am currently at a Black-owned firm that's made racial equity investing the centerpiece of our strategies," Gholston said. "You have to be much more cautious in the way that you design products, the way that you talk about products. There is that risk that you're going to be in trouble."

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A mixed picture on asset manager diversity

Representatives for the SEC didn't respond to inquiries about the removal of the guidance from its website or the findings of the GAO report, which updated the watchdog's 2017 study on asset manager diversity and came at the request of Democratic lawmakers three years ago. The dearth of assets managed by women- or minority-owned firms received more attention following the 2020 murder of George Floyd as part of the industry's response to the nationwide protests.

The GAO found some signs of change at certain pension plans and across the industry. Five federal pensions told the researchers that 61 women- or minority-owned asset managers were overseeing a combined $4.06 billion on their behalf at the end of 2022 — but that was still only 2.8% of the externally managed assets across the plans. On the other hand, that is a far higher share than in asset management in general. 

As of 2023, the industry-wide assets managed by women- and minority-owned firms had ticked up to 1.1% from less than 1% in 2017. However, that tiny blip added up to a total of $1.3 trillion in assets managed by 340 firms, compared to $529 billion at just 180 firms only six years earlier. That's a 146% surge in assets, or a difference of $771 billion in AUM, and an 89% jump in the net increase of 160 more firms with some degree of ownership by women or Black, Hispanic, Asian American or other minority group members.

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Anti-DEI impact to the SEC so far?

The ramifications of Trump's DEI orders to the SEC remain difficult to ascertain, based on the agency's website. The conservative Heritage Foundation's Project 2025 policy blueprint for Trump's administration called for the SEC to end "discrimination based on immutable characteristics" in the form of "offices at financial regulators that promote racist policies (usually in the name of 'diversity, equity, and inclusion')." And, in February, SEC staff informed GAO researchers that they had taken down the previous guidance about "investment advisers' consideration of DEI factors when recommending or selecting other advisers" based on Trump's executive orders in the previous month, the GAO report said.

"As a result, we removed our assessment of this guidance from our review," the report's authors, Director of Financial Markets and Community Involvement Michael Clements and Director of Education, Workforce and Income Security Tranchau "Kris" Nguyen wrote. "SEC staff also told us that they were analyzing the potential impact of the executive orders on their activities related to promoting and collecting diversity policies and practices through SEC's diversity self-assessment form for its regulated entities."

The link to the 2022 FAQ now goes to a "403 error" page. But still available are the "Diversity self-assessment tool" for regulated entities, a bare section explaining the purposes of the SEC Office of Minority and Women Inclusion under the Dodd-Frank Law and a statement by two commissioners praising the now-purged guidance. The report, which stated that the GAO hasn't "determined the scope and effect of the January 2025 executive orders or their impact on SEC programs and activities" didn't include any information about what specifically made the FAQ out of compliance with Trump's executive orders. 

"Staff from SEC's Division of Investment Management issued this guidance to clarify that investment advisers may consider DEI factors when recommending or selecting other advisers, such as asset management firms, provided that doing so is consistent with the client's objectives, the scope of the relationship and the adviser's disclosures," Clements and Nguyen wrote in a footnote.

READ MORE: Fighting systemic racism with estate planning — one client at a time

It was a 'curious' FAQ to begin with

Even before Trump took office, some industry experts wondered what, if anything, to conclude from the FAQ. 

The guidance "raises more questions than it answers," according to a November 2022 blog by consulting firm Patomak Global Partners entitled "The Curious Case of the Hidden FAQ." The SEC issued no corresponding public announcement about the guidance, the blog noted. And the agency didn't even include the FAQ alongside others available in the FAQ section of its website. In fact, the mere existence of the guidance may not have become publicly known without two of the commissioners releasing the statement. And any asset allocators or managers would have found it difficult to use in the first place, according to Patomak, which described it as "a check-the-box exercise to implement a controversial recommendation."

"Even if an adviser stumbled upon the FAQ," the blog continued, "it does not provide helpful guidance as to how an adviser can incorporate DEI factors into its selection or recommendation of other advisers consistent with its fiduciary duty to clients. Investment advisers should be wary of overreliance on this FAQ. Staff FAQs have no legal force or effect and do not alter or amend applicable law, given that they represent the views of SEC staff, not the Commission. Choosing an investment adviser with a short track record or minimal AUM can open an investment adviser to significant liability in the event of subpar performance or an incident of defalcation, a problem this nonbinding FAQ is unlikely to solve, particularly in light of the fact that it contains no guidance on how to balance these competing concerns."

READ MORE: How financial advisors can help close the racial wealth gap

The work goes on, no matter who's in power

Regardless, advocates like Nuñez and Gholston will continue their work in any political climate — and welcome collaboration from other industry professionals in the mission to increase opportunities and align clients' portfolios to their principles.

"The short answer is, contact me," Nuñez said. "Some of us have been out here doing this for decades, and we're now working closer together than before. But it is very fragmented."

Taking down the guidance is "definitely a move in the wrong direction" by the SEC, but efforts to increase women- and minority representation in asset management "have been so inadequate to date that there's not much room to decline," Gholston said. And that has spanned Democratic and Republican administrations, he pointed out. The underlying trends in the investing marketplace aren't going away in Trump's second term, according to Gholston. 

"The desire for greater fairness and a level playing field in the investment management world has not declined amongst the populace, the investment world and our clients," he said. "It's very likely that, over the long term, we're going to see a renewed effort in this space."