On April 23, 2025, the Administration released an Executive Order promoting a misinterpretation of the Equal Protection Clause of the 14th Amendment to the United States Constitution. Specifically, the executive order asserted three mistruths about the constitutional promise of equal protection, which threaten to entrench inequality among the American people: 

• First, the Executive Order claimed the Equal Protection Clause encourages “a colorblind society.”
• Second, the Executive Order characterized the “immutable characteristics” protected by the Equal Protection Clause as “irrelevant.”
• And third, the Executive Order asserted that assessing and addressing the disproportionate adverse impact of laws or policies on particular groups of people undermines, rather than advances, equal protection. 

Since executive orders cannot change the US Constitution, it is important to have a clear understanding of what the constitutional promise of equal protection actually requires: the protection of all people from nefarious discrimination at the hands of the US government. 

To effectuate this promise, the Equal Protection Clause permits 1) race-conscious interventions when necessary to address the harms of discrimination; 2) increased judicial scrutiny for discrimination on the grounds of an individual’s unchangeable characteristics; and 3) impact assessments to analyze the effect of government action on vulnerable populations.

The Equal Protection Clause is Race-Conscious 

Though the Executive Order claimed the Equal Protection Clause encourages “a colorblind society,” the clause actually compels race-conscious interventions when necessary to advance equality in the United States. The 13th, 14th, and 15th Amendments to the US Constitution were incorporated after the Civil War to dismantle the legal system of race-based enslavement and establish a society of equality for all. 

While the nation has yet to fulfill this promise of equality, the Supreme Court has repeatedly held that, in certain circumstances, the 14th Amendment compels race-conscious government intervention to work towards equal protection under the law. 

• In Brown v. Board of Education, the Court held that the 14th Amendment required the race-conscious integration of public schools, and the government dispensed federal resources to shore up this goal.¹ 
• Later, in Fullilove v. Klutznick, after generations of race-based exclusion from federal funding, the Court upheld a statute requiring at least 10 percent of public work funds to be set aside for minority-owned businesses.² In doing so, the Court recognized the statute’s legitimate goal to correct past discrimination and found that Section 5 of the 14th Amendment grants Congress “broad remedial powers” that need not “act in a wholly ‘color-blind’ fashion.”³
• And most recently, in SFFA v. Harvard and SFFA v. UNC, though the Court significantly narrowed the use of race-conscious admissions practices in higher education, the Court recognized that under the 14th Amendment, race-based government intervention is permitted where it is remediating specific, identified instances of past discrimination.⁴

The Relevance of Immutable Characteristics 

Additionally, to advance a just society, the Equal Protection Clause is not only conscious of race, but of all “immutable characteristics” that may experience exclusion, subordination, or harm by the government. 

Though the Executive Order characterized immutable characteristics as “irrelevant,” these unchangeable traits—such as sex, nationality, ethnicity—trigger increased scrutiny from courts whenever they experience discriminatory treatment. And for good reason, as many of these characteristics have been subjected to some degree of historic or ongoing marginalization under US law. 

• For example, in the 1996 case United States v. Virginia, the Court held that the Virginia Military Institute’s male-only admissions policy violated the Equal Protection Clause by excluding women on the basis of their sex.⁵ 
• And in the 2015 case Obergefell v. Hodges, the Court determined that the denial of gay marriage violated the Equal Protection Clause by discriminating against couples on the basis of their sexual orientation.⁶ 

Far from “irrelevant,” these immutable characteristics are highly relevant when seeking to ensure all people are included in the promise of equal protection under the law. 

The Equal Protection Clause Permits Impact Assessment 

Lastly, the Equal Protection Clause permits impact assessments of laws and policies to ensure there is no disproportionate negative effect on any particular group of people. Such an effect could perpetuate inequality and is referred to as “disparate impact.” 

Disparate impact assessments are utilized under civil rights statutes, including Title VI of the Civil Rights Act of 1964 (prohibiting adverse discrimination with government funding),⁷ Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination),⁸ the Fair Housing Act,⁹ and the Equal Credit Opportunity Act,¹⁰ among others, to root out any laws or policies that may entrench inequality, whether intentionally or unintentionally. 

These are the true promises of equal protection: a powerful constitutional tool to ensure that this nation governs for all. And no executive order can change that mandate. 

_______________________

[1] Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 495 (1954).
[2] Fullilove v. Klutznick, 448 U.S. 448, 450 (1980).
[3] Id. 
[4] See SFFA v. Harvard, 600 U.S. at 207 (“[O]ur precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute.”).
[5] United States v. Virginia, 518 U.S. 515 (1996). 
[6] Obergefell v. Hodges, 576 U.S. 644 (2015). 
[7] 42 U.S.C. § 2000d et seq.
[8] 42 U.S.C. § 2000e. 
[9] 42 U.S.C. §§ 3601-3631. 
[10]15 U.S.C. § 1691 et seq.