Fourteenth Amendment DEI Lawfare

(Mises)—The politics of the Fourteenth Amendment recently returned to global attention when Colorado attempted to remove President Donald Trump’s name from their presidential election ballot, an attempt that was thwarted by the United States Supreme Court ruling that “Colorado cannot enforce section 3” of the Fourteenth Amendment as states lack power to do so. The jubilation with which the Supreme Court intervention was greeted overshadowed any concerns about the long-term implications of federal restrictions on state sovereignty.

The Thirteenth and Fourteenth Amendments were introduced after the war of 1861-1865 to reconfigure the balance of power between states and the federal government. As stated by the Supreme Court in Ex Parte Virginia (1879): these amendments “were intended to be what they really are – limitations of the power of the States and enlargements of the power of Congress.” In this case, which involved allegations of race discrimination, the Supreme Court held that “immunity from any such [racial] discrimination is one of the equal rights of all persons, and that any withholding it by a State is a denial of the equal protection of the laws within the meaning of the amendment.”

The Fourteenth Amendment “equal protection” clause is once again in the spotlight, this time harnessed by activists arguing that state legislation banning diversity, equity, and inclusion in public institutions is unconstitutional. In January 2025, a lawsuit was filed in Alabama claiming that Alabama Senate Bill 129 (SB129), which bans DEI, is a violation of both the First Amendment free speech protection and the Fourteenth Amendment equal protection clause. While specific details of anti-DEI legislation vary from state to state, SB129 offers a good illustration of the Fourteenth Amendment debate in relation to DEI. The equal protection clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws,” and DEI activists argue that banning DEI violates that by discriminating against black people. This argument calls to mind the prescient words of Thomas Sowell: “When people get used to preferential treatment, equal treatment seems like discrimination.”

Many commentators are optimistic that this challenge to anti-DEI legislation is too ludicrous for it to go very far. They rely on the fact that the Supreme Court struck down affirmative action policies in college admissions, which was widely interpreted as a rejection of the critical race theories behind DEI that the liberal judges endorsed in their dissenting opinions. But the DEI activists’ reading of the Fourteenth Amendment is not quite as outlandish as may at first sight appear, for two reasons. First, the widespread “consensus” that racial equality is an important value means that arguing against any “antiracist” reading of the Fourteenth Amendment is often politically fraught, especially for people who are afraid of being accidentally classified as racists. The “optics” of arguing for a more restrictive reading of the equal protection clause are unattractive to those who feel that the Dred Scott decision was “shameful”—a view reflected in President Trump’s Executive Order revoking automatic birthright citizenship which stated:

Section 1. Purpose. The privilege of United States citizenship is a priceless and profound gift. The Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That provision rightly repudiated the Supreme Court of the United States’s shameful decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), which misinterpreted the Constitution as permanently excluding people of African descent from eligibility for United States citizenship solely based on their race.

Second, some Supreme Court judges are very sympathetic to an expansive reading of the equal protection clause. Some subscribe to a theory of constitutional interpretation which holds that equality is a foundational American ideal and the Constitution should, wherever possible, be interpreted so as to advance that ideal. The Supreme Court prohibition of affirmative action in college admissions must be read in that light. In that case there was extensive discussion of “diversity,” with the court observing that “in Grutter v. Bollinger [2003],” the Court for the first time “endorse[d] Justice Powell’s view [in Bakke, 438 U. S. 265] that student body diversity is a compelling state interest that can justify the use of race in university admissions.” Race-based admissions policies were struck down on grounds that,

Respondents fail to operate their race-based admissions programs in a manner that is “sufficiently measurable to permit judicial [review]” under the rubric of strict scrutiny… respondents’ admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. (emphasis added)

In other words, there was no “meaningful connection” shown between race-based admissions and “the educational benefits of diversity”—a point which Justice Clarence had frequently made in previous affirmative action cases. Here the court was not saying that diversity is, in itself, an inappropriate educational goal, but that that the race-based methods of achieving it had not been justified:

…respondents measure the racial composition of their classes using racial categories that are plainly overbroad (expressing, for example, no concern whether South Asian or East Asian students are adequately represented as “Asian”); arbitrary or undefined (the use of the category “Hispanic”); or underinclusive (no category at all for Middle Eastern students). The unclear connection between the goals that respondents seek and the means they employ preclude courts from meaningfully scrutinizing respondents’ admissions programs.

This is not the ringing or unequivocal rejection of “diversity” nostrums that many may have supposed it to be. It certainly cannot be read as a ruling that any form of diversity policy is “illegal.” Further, the affirmative action policies that were struck down were patently unjustifiable as they had been used to exclude Asian Americans, which is clearly not conducive to “diversity.” The court ruled that:

Respondents’ race-based admissions systems also fail to comply with the Equal Protection Clause’s twin commands that race may never be used as a “negative” and that it may not operate as a stereotype.… Harvard’s consideration of race has resulted in fewer admissions of Asian-American students.

DEI schemes and programs have, so far, been largely careful to avoid being exclusionary by explicitly stating that “everyone is welcome” but preference is given to under-represented minorities. For example, in the infamous “Black Out” theater productions that were designated for black audiences, organizers insisted that nobody would be turned away for being white.

As the producers of Slave Play in the West End, our intent is to celebrate the play with the widest possible audience. We want to increase accessibility to theatre for everyone. The Broadway production conceived of Black Out nights and we are carefully considering how to incorporate this endeavour…. To be absolutely clear, no-one will be prevented or precluded from attending any performance of Slave Play.

The issues arising under DEI policies are, however, not the same as those litigated in the affirmative action cases. SB129 defines banned DEI programs as “any program, class, training, seminar, or other event where attendance is based on an individual’s race, sex, gender identity, ethnicity, national origin, or sexual orientation, or that otherwise violates this act.” The lawsuits have carefully selected examples that are more likely to be seen by the courts as falling within the bounds of what a sympathetic judge might consider reasonable—they have certainly not brought up their own examples of egregious conduct such as teachers telling white pupils to apologize to black classmates:

Allegations that a middle school teacher forced several students to stand and apologize for their “white privilege” have rocked a North Carolina school district. “[The teacher] caused some of her students to stand up and apologize to other students based on their inequal [sic] opportunities of education,” Wilkinson said.

Instead, the litigation cites examples such as the withdrawal of funding from the Black Student Union and the NAACP student chapter which hold events for black students, and the prohibition of classes designed to study race-related topics:

Cassandra Simon, an associate professor of social work at UA, has been accused of breaking the law, the court motion says. Simon teaches a course titled Anti-Oppression and Social Justice that covers what the law calls “divisive concepts.”

“She faces the constitutionally untenable position of either self-censoring her classroom instruction or materials or facing severe consequences for violating the law,” the lawyers wrote. “Last fall, while teaching this same class, she was accused of violating SB 129 and threatened with discipline or termination.”

Rather than getting lost in the weeds of which DEI schemes may or may not be “constitutional,” it is important not to lose sight of the fundamental issue for all who defend liberty, namely, the constitutional balance between state and federal power, and the role of “antiracism” in shifting power from state to federal government. From the outset, the stated purpose of the Radical Republicans in supporting civil rights for black people was to give federal authorities more power to “protect” black people from “racist” state authorities in the American South. The possibility that the concept of racial equality might be read as permitting preferential treatment for blacks was immediately recognized as a threat to the prevailing constitutional order by President Andrew Johnson when he vetoed the Civil Rights Act 1866, the first law that explicitly provided for racial equality. He said:

In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.

Seen in that light, it is no coincidence that the SB129 lawfare invokes the old notion that Alabama is a racist state, by averring that “Alabama’s history entails a devastating and violent history of racial discrimination against Black communities in the United States” and adding, apropos of nothing, that “Alabama served as the first capital of the Confederacy during the initial few months of the U.S. Civil War.” The goal of this lawfare propaganda is the same as it has always been: an attempt to reconfigure the balance of political power.