Publication Date

2025

Abstract

his Article examines how the second Trump Administration’s aggressive attacks on programs, policies, and speech loosely associated with diversity, equity, and inclusion [DEI] intersect with the constitutional guarantees of equal protection and freedom of speech. We argue first that there is little doctrinal support for the administration’s pervasive efforts to justify its war on DEI by invoking the Equal Protection Clause and parallel statutory law. Instead, the administration is stretching existing colorblindness doctrine beyond recognition, into a radical vision that we label “anti-antisubordination.” On this view, vindicating equality values does not only require restricting practices that treat individuals differently based on race or other identity characteristics. It precludes any conscious efforts to promote a more equitable and inclusive society, and even the expression of viewpoints that support such efforts—those that advance an antisubordination perspective or acknowledge the existence of identity-based social inequalities.

Second, we show that, to avoid the conflict its viewpoint-discriminatory conception of equality law creates with the core First Amendment principle of viewpoint neutrality, the administration is in effect attempting to revive the long- dead distinction between constitutional “rights” and “privileges” so that it can impose essentially any conditions it wants on federal funds and other benefits and thus dramatically limit the First Amendment’s protections for private speakers and institutions. On both the equal protection and First Amendment fronts, we thus demonstrate that the administration’s war on DEI entails a vision of constitutional equality that departs sharply from existing doctrine and that poses serious dangers to efforts to redress inequalities and to freedom of expression.

Number

25-35

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