WASHINGTON — As part of President Donald Trump’s new war on diversity programs, conservatives are renewing a long-running legal battle over the meaning of the Constitution’s guarantee of “equal protection” that dates back to the post-Civil War era.
Trump, as previewed in one executive order purporting to target diversity, equity and inclusion (DEI) policies, is seeking in some instances to overturn decades-old policies aimed at protecting and empowering minority groups, both within the federal government and outside.
His administration is also likely to radically change the federal government’s enforcement priorities by using laws enacted during the Civil Rights Movement in the 1950s and ’60s to target diversity programs.
At the same time, conservative groups are pursuing court cases challenging policies they view as unlawfully promoting racial preferences. The Trump administration could throw its weigh behind some of those efforts.
With a 6-3 conservative majority on the Supreme Court, which has already ended the consideration of race in college admissions, the Trump administration is likely to have a sympathetic audience when cases on race-related issues arise.
“It’s shocking and appalling what this administration is doing,” said Jin Hee Lee, a lawyer at the Legal Defense Fund, the group that won landmark cases during the civil rights era under the leadership of future Supreme Court Justice Thurgood Marshall.
“I would hope that the Supreme Court, regardless of their ideologies and so forth, would recognize that this is antithetical to the rule of law,” she added.
Thurgood Marshall, the first Black member of the U.S. Supreme Court.
Conservatives, meanwhile, are hopeful the court will continue on the path of striking down what they view as unlawful racial preferences.
“I’m confident the court is going to subject race-based government action to the strictest of scrutinies,” said Jonathan Berry, a conservative lawyer who wrote about unwinding DEI policies as part of Project 2025, which was designed to be a blueprint for the second Trump term.
Writ large, the fight is over what exactly the 14th Amendment’s promise of “equal protection of the laws” means. It has been raging since the amendment was ratified in 1868, when the Reconstruction period, which progressives hoped would usher in a new era of racial equality, was swiftly followed by the Jim Crow era, in which Southern states enforced racial segregation by law.
“This is a fight over Reconstruction,” said Evan Bernick, a professor at Northern Illinois University College of Law, who co-wrote a book about the 14th Amendment. “It’s an old fight; it’s a continuing one.”
In short, liberals believe the 14th Amendment is a progressive statement that empowers the government to act not just to protect minorities but to lift them up. That view underpinned key Supreme Court rulings such as Brown v. Board of Education, the 1954 case argued by Marshall that outlawed racial segregation in schools.
But conservatives who think the 14th Amendment is an entirely race-neutral measure are in control throughout Washington, including on the Supreme Court.
The court notably invoked the 14th Amendment in 2023 in ending affirmative action in college admissions, leading the court’s two Black justices — conservative Justice Clarence Thomas and liberal Justice Ketanji Brown Jackson — to engage in a fierce debate over their differing views of what it encapsulates.
Thomas touted his vision of a “colorblind Constitution” that outlaws any consideration of race, while Jackson said such a pronouncement is not reflected in the lived experience of Black people in America.
It is Thomas’ view that currently holds sway on the court, as reflected in Chief Justice John Roberts’ famous quote in a 2007 ruling in which the court invalidated a program aimed at ensuring racial diversity in Seattle schools.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote. The court ruled then that it was a 14th Amendment violation to deny a student a place at a preferred school even if it was part of a plan to remedy past discrimination.
Debate over racial preferences
Trump’s executive order states that DEI programs aimed at fostering diversity that have become widespread in government and the private sector are “dangerous, demeaning, and immoral race- and sex- based preferences.”
Among other things, the order rescinded another executive order issued by President Lyndon B. Johnson in 1965 that sought to tackle discrimination in federal contractor hiring practices. It required contractors to take affirmative action to ensure equal opportunity.
The Department of Labor, which enforces employment law that bars discrimination in the workplace, quickly announced it would “cease and desist all investigations and enforcement activity” related to the now-rescinded executive order. A department spokesman said he had no further information to share about enforcement priorities.
The executive order specifically called on the Justice Department to develop a new plan for enforcing civil rights laws and asked various agencies to identify possible targets for investigation. A spokesman for the department did not respond to a request seeking further information on its plans.
The chapter on the Labor Department authored by Berry for Project 2025 calls for the administration to use its enforcement authority to “prohibit racial classification and quotas” such that it could target some DEI programs.
Ed Blum, a conservative activist who led the college admissions challenge, said there are dozens of ongoing cases challenging DEI policies.
“It is our hope that the leadership throughout the Trump administration supports all litigation that challenges the use of race and ethnicity in our nation’s public policies,” he added.
One pending issue, left unresolved by the recent Supreme Court ruling, is whether the nation’s military academies can consider race in their admissions policies. Cases are currently ongoing in lower courts.
Another area of the law that could be subject to litigation under Trump is whether to end liability for actions that lead to discriminatory results even if there was no intent to discriminate.
Conservatives have long criticized so-called disparate impact claims, which can be brought under several federal laws, including the Civil Rights Act, for race discrimination, as well as other forms of bias.
“A lot of modern DEI is traceable to disparate impact liability and the pressure it creates for racial balancing in the workforce,” Berry said.
One legal organization on the right that has active litigation seeking to end policies it believes promote unlawful racial discrimination is the Pacific Legal Foundation.
Examples of its cases include a challenge to a law in Tennessee that is aimed at ensuring a medical board has at least one member from a racial minority group. Another involves a loan program for first-time homebuyers in Washington state that is limited to minorities.
Joshua Thompson, one of the group’s lawyers, expressed hope that — via litigation, and with Trump’s help — race-conscious government policies could be eliminated within five years.
“That’s something we should celebrate,” he said.
This article was originally published on NBCNews.com
