I spent over 30 years managing other people's money, and one rule never changes: if you owe a fiduciary duty to a group of people, you treat them the same. You don't run one set of rules for the client you like and another for the client you don't. Do that, and you'll lose your license, and you'll deserve to. So, when I watch federal judges split down the middle on whether the government can stop sorting Americans by race, I keep landing on the same question. Why is this even a fight?
On Feb. 6, the Fourth Circuit Court of Appeals lifted a nationwide injunction that had blocked core provisions of two of President Trump's early executive orders, the ones ending DEI preferencing across federal agencies and requiring contractors to certify they aren't running discriminatory diversity programs. The panel found the challengers, led by the National Association of Diversity Officers in Higher Education, hadn't shown the orders were unconstitutional on their face. The certification requirement stands. The termination provision stands. The court left the door open for narrower, as-applied challenges down the road, but the broad win went to the administration.
Less than five months later, a different court went the other way. On June 29, a federal judge in the Western District of Washington blocked enforcement of similar DEI and "gender ideology" grant conditions against Seattle, Portland, Cleveland, and a string of other cities and counties. Two federal courts, two executive orders cut from the same cloth, two opposite outcomes. That's not a fluke. That's a split forming in real time, and splits are exactly what the Supreme Court exists to resolve.
Then add a third order to the pile. In March, the administration issued EO 14398, extending the certification and False Claims Act exposure to a much broader universe of federal contracts. Nineteen states and the District of Columbia sued in June to block it, arguing that the Federal Acquisition Regulatory Council skipped the notice-and-comment process the law requires. That case is still working through the Maryland federal courts. The Justice Department already has one settlement in hand, a $17 million deal with IBM under the Civil Rights Fraud Initiative, so nobody should mistake this for an empty threat.
Now to the second part of the question, because it's a fair one. Didn't the Supreme Court already settle how much authority this president has? Sort of. In Trump v. Slaughter, the Court ruled the president has broad power to remove the heads of independent agencies. It was a real win, but a narrow one, about removal power, not about DEI policy itself. And barely a week before I sat down to write this, on July 2, the Fourth Circuit turned around and blocked the administration from firing 19 intelligence officers whose jobs were tied to DEI programs, ruling the process denied them a fair appeal. Two rulings, same circuit, same general subject, and the tension between them tells you the legal fight over DEI is nowhere near finished. Removal authority and discrimination law are different questions wearing the same headline.
Here's the part that actually matters, and it's the part nobody on the DEI side wants to say out loud. The Equal Protection Clause doesn't have an asterisk. It doesn't say "equal treatment, except when we've decided a group needs a hand up more than another group needs to be treated fairly." The Supreme Court said as much in 2023 in Students for Fair Admissions v. Harvard, when it made clear that sorting people by race, even for supposedly benevolent reasons, still runs into the Fourteenth Amendment. Justice Scalia spent a career making the same point: the Constitution is colorblind, full stop, and judges don't get to rewrite it based on which group they'd like to help this decade. Jonathan Turley has argued the same thing for years: that "equity" as practiced in these programs isn't equal opportunity; it's equal outcomes enforced by quota, and those are not the same thing no matter how many times an HR department insists otherwise.
I coached high school hurdles for years. Every kid on that track ran the same distance, cleared the same height, against the same clock. That's what fairness looks like. Nobody got a shorter track because of who their parents were, and nobody got a longer one either. Thomas Sowell has spent decades warning against what he calls cosmic justice, the idea that government can and should engineer equal results rather than guarantee equal rules. One side of this fight wants the government out of the business of counting by race at all. The other side wants the counting to continue, just pointed in a different direction than it used to be. Both sides can't stand on the same constitutional ground, and eventually nine justices are going to have to say which one is.
Given the split between the Fourth Circuit and the Washington federal courts and given a fourth executive order already generating fresh litigation, this is heading to the Supreme Court. Maybe not this term, but soon. When it gets there, the question won't be whether DEI is popular or unpopular, or whether corporate boards like it or hate it. The question will be the one the Fourteenth Amendment was written to answer in the first place: does the law treat every citizen the same, or does it not? We've had that answer since 1868. It would be nice if we stopped re-litigating it every time a new administration takes office.
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.