Washington Conservatives are reviving a long-running legal dispute over the interpretation of the Constitution’s guarantee of equal protection that began in the post-Civil War era as part of President Donald Trump’s new war on diversity initiatives.
According to one executive order that purports to target diversity, equity, and inclusion (DEI) policies, Trump is occasionally attempting to repeal long-standing laws that have been put in place to protect and strengthen minority populations both inside and outside the federal government.
By targeting diversity initiatives with legislation passed during the Civil Rights Movement in the 1950s and 1960s, his administration is also likely to drastically alter the federal government’s enforcement priorities.
Concurrently, conservative organizations are fighting to overturn laws they believe illegally advance racial preferences. Some of those initiatives might receive support from the Trump administration.
The Trump administration is likely to have a sympathetic audience when cases involving race-related concerns come up because the Supreme Court has a conservative 6-3 majority and has already abolished the use of race in college admissions.
“What this administration is doing is shocking and appalling,” said Jin Hee Lee, a lawyer at the Legal Defense Fund, which, under the direction of future Supreme Court Justice Thurgood Marshall, won historic cases during the civil rights era.
She continued, “I would hope that the Supreme Court would recognize that this is antithetical to the rule of law, regardless of their ideologies and so forth.”
Meanwhile, conservatives are optimistic that the court will keep up its current course of invalidating what they see as illegal racial discrimination.
Jonathan Berry, a conservative attorney who wrote about repealing DEI regulations as part of Project 2025, which was intended to serve as a model for the second Trump administration, expressed confidence that the court would scrutinize government actions based on race.
The main point of contention is what the equal protection clause of the 14th Amendment actually entails. The Jim Crow era, in which Southern states imposed racial segregation by law, quickly followed the Reconstruction era, which progressives believed would usher in a new era of racial equality, and it has been going strong ever since the amendment was enacted in 1868.
According to Evan Bernick, a professor at Northern Illinois University College of Law and co-author of a book on the 14th Amendment, this is a battle over Reconstruction. It’s a long-standing and ongoing battle.
To put it briefly, liberals see the 14th Amendment as a progressive declaration that gives the government the authority to act not only to protect but also to uplift minorities. This viewpoint served as the foundation for significant Supreme Court decisions like Brown v. Board of Education, the 1954 case in which Marshall contended that racial segregation in schools was illegal.
However, the Supreme Court is dominated by conservatives who believe the 14th Amendment is a completely racial-neutral document.
The court’s two Black justices, liberal Justice Ketanji Brown Jackson and conservative Justice Clarence Thomas, engaged in a heated argument over their divergent interpretations of the 14th Amendment after it was famously invoked in 2023 to abolish affirmative action in college admissions.
Jackson claimed that the lived experiences of Black Americans do not align with Thomas’s ideal of a colorblind Constitution that forbids any consideration of race.
As seen by Chief Justice John Roberts’ well-known statement in a 2007 decision in which the court struck down a program intended to guarantee racial diversity in Seattle schools, Thomas’ opinion currently dominates the court.
He said that the only way to end racial prejudice is to cease racial discrimination itself. At that time, the court decided that denying a student admission to a school of their choice, even if it was a part of a plan to address prior prejudice, was a violation of the 14th Amendment.
Debate over racial preferences
According to Trump’s executive order, DEI initiatives that promote diversity and are now common in the public and corporate sectors are harmful, dehumanizing, and unethical since they favor people based on their race and sex.
The order, among other things, revoked a previous executive order that President Lyndon B. Johnson had signed in 1965 to address discrimination in hiring practices for federal contractors. In order to guarantee equal opportunity, contractors have to take affirmative action.
The Department of Labor, which is responsible for enforcing the employment law that prohibits discrimination in the workplace, promptly said that it will stop all enforcement actions and investigations pertaining to the now-rescinded executive order. A department spokesperson stated that he was unable to provide any additional details regarding enforcement priorities.
The presidential order specifically directed agencies to identify potential targets for inquiry and urged the Justice Department to create a new strategy for implementing civil rights laws. A request for more details on the department’s plans was not answered by a spokeswoman.
According to Berry’s chapter on the Labor Department for Project 2025, the administration should use its enforcement power to forbid quotas and racial classification in order to target certain DEI initiatives.
There are scores of active litigation against DEI policy, according to Ed Blum, a conservative activist who spearheaded the college admissions challenge.
We hope that the Trump administration’s leadership will back any legal action that questions the use of race and ethnicity in our country’s public policy, he continued.
The new Supreme Court decision has left open the question of whether the country’s military schools can take race into account when making admissions decisions. There are still cases pending in lower courts.
The question of whether to terminate liability for acts that result in discriminatory outcomes even in cases where there was no intent to discriminate is another area of the law that may be the focus of legal action under Trump.
Disparate impact claims, which can be filed under several federal laws, such as the Civil Rights Act, for racial discrimination and other types of bias, have long been attacked by conservatives.
According to Berry, a large portion of contemporary DEI can be linked to disparate impact liability and the pressure it puts on employers to achieve racial parity in the workforce.
The Pacific Legal Foundation is one right-wing legal group that is actively pursuing legal action to stop laws it feels encourage illegal racial discrimination.
The challenge to a Tennessee legislation that requires a medical board to have at least one member from a racial minority group is one example of its cases. Another is a minority-only financing program for first-time homeowners in the state of Washington.
One of the group’s attorneys, Joshua Thompson, said he hoped that race-conscious government practices might be abolished in five years through lawsuit and Trump’s assistance.
“We ought to celebrate that,” he remarked.