The Fourteenth Amendment says what it means. "No state shall...deny to any person within its jurisdiction the equal protection of the laws." Not equal protection for some people. Not equal protection distributed according to historical grievance schedules. Every person. The argument that diversity, equity, and inclusion programs administered by state-funded institutions are consistent with this language requires a level of definitional flexibility that would impress a seasoned financial engineer, and I've spent 30 years around those.
Ratified in 1868, three years after the Civil War ended, the amendment was the centerpiece of the Reconstruction package designed to secure citizenship and civil rights for formerly enslaved Americans. The debates in the 39th Congress contained conflicting interpretations, broad political rhetoric, and strategic compromises. Senator Lyman Trumbull, the principal drafter of the Civil Rights Act of 1866 that preceded the amendment, described the goal as "equality of civil rights among all classes of citizens." Not preferred classes. Not disadvantaged classes. All classes. The drafters had watched a government systematically classify people by race for centuries. Their response was to prohibit the practice, not to refine it.
Judicial history didn't hold that line. Plessy v. Ferguson (1896) upheld "separate but equal" as constitutionally sound, the interpretive low point of the clause's history. Brown v. Board of Education (1954) overturned Plessy and established that state-imposed separation by race is inherently unequal. That should have been the end of the matter. It wasn't. The Court's affirmative action decisions, Regents of the University of California v. Bakke (1978), then Grutter v. Bollinger (2003), allowed race-conscious admissions programs to survive under a diversity rationale that Justice Powell essentially invented in Bakke and that Justice O'Connor extended in Grutter while predicting the programs would be unnecessary in 25 years. She was off by about two years.
Students for Fair Admissions v. Harvard and UNC (2023) closed the Grutter chapter. Chief Justice Roberts, writing for a 6-3 majority, held that Harvard's and UNC's admissions programs couldn't be reconciled with the Equal Protection Clause. Adarand Constructors v. Pena (1995) had already established that all racial classifications by government, regardless of which group is burdened or benefited, are subject to strict scrutiny, the most demanding standard the Court applies. SFFA confirmed what Adarand required: classifying people by race to produce preferred outcomes isn't equal protection. It's the thing equal protection was written to prevent.
Institutional response to SFFA has been instructive. State-funded universities, contracting agencies, and employers have produced a wave of alternative mechanisms designed to achieve demographic outcomes without triggering the explicit racial classification the Court has now definitively ruled out. Socioeconomic proxies are calibrated to produce racial results. "Holistic review" criteria that function as race by another name. DEI offices whose stated mission is producing outcomes that the Equal Protection Clause expressly prohibits them from pursuing through direct means. The constitutional question isn't whether these workarounds are clever, some of them are, but whether they survive strict scrutiny when their actual purpose and effect are examined honestly.
I've made a version of this argument in a different forum. My published piece "Whose Money Is It? ESG, DEI, and the Systematic Erosion of Public Pension Fiduciary Duty" argued that investment decisions in public pension funds based on demographic criteria rather than financial merit breach the fiduciary duty those funds owe to their beneficiaries. The constitutional argument is structurally identical. State pension fund trustees owe a duty to beneficiaries regardless of the beneficiaries' race. State university admissions offices owe equal protection to applicants regardless of their race. The principle is the same; the legal framework differs; the institutional resistance to both is equally determined and equally unconvincing.
Several major public universities have kept their DEI infrastructure largely intact, rebranded rather than reformed. State contracting requirements in California and elsewhere maintain diversity preferences that raise the same equal protection questions SFFA addressed in the admissions context. Explicit racial preferences in state employment, documented in hiring, promotion, and contracting decisions at multiple California state agencies, represent the most direct conflict between institutional practice and constitutional text. These aren't edge cases. They're the operational norm of a significant portion of the state-funded institutional sector.
SFFA didn't address DEI programs generally. That's the next litigation front, and it's already active. The equal protection argument doesn't change based on which state-funded function is applying the racial classification, whether admissions, contracting, employment, or grant-making. What Adarand established and SFFA confirmed, is that the constitutional standard applies to all of them. Government classification by race requires justification that survives strict scrutiny. The diversity rationale can no longer supply that justification. Post-SFFA institutions running diversity programs through proxy mechanisms are betting that courts won't look closely at what those programs actually do. That's a bet I wouldn't put client capital behind.
No careful reading of the Equal Protection Clause makes DEI programs at state institutions constitutionally defensible. State governments may not deny any person the equal protection of the laws. Programs that distribute benefits and burdens by race deny equal protection to the people on the wrong end of the classification, whatever their race, whatever the stated rationale. The 39th Congress understood this. The Warren Court, in Brown, reaffirmed it. Roberts, in SFFA, applied it. The institutions currently working around those decisions aren't engaged in constitutional interpretation. They're engaged in constitutional resistance, and courts that take Adarand seriously will eventually notice the difference.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
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