Government Programs

Government programs are initiatives by agencies or other government entities designed to uplift or benefit marginalized groups. Examples include:  

• Internship programs geared toward increasing diversity in the public sector

• Laws requiring diversity on boards

• Programs that offer financial or other support to disadvantaged businesses or individuals. 

Plaintiffs argue that such programs discriminate against members of dominant groups (for example, white individuals or men) in violation of the Equal Protection Clause of the U.S. Constitution, which provides: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” This argument is based on the belief that programs that aim to overcome historical patterns of marginalization and segregation are just as discriminatory as programs that aim to reinforce those patterns. 

There have been a number of challenges to government programs since the Supreme Court’s decision in Students for Fair Admissions v. University of North Carolina (companion case to Students for Fair Admissions v. Harvard). In that case, Students for Fair Admissions (SFFA) argued that the University of North Carolina (UNC), a state university, violated the Equal Protection Clause by considering race in its admissions process. The Supreme Court applied strict scrutiny—the highest standard of review for laws or initiatives involving race or national origin—to assess whether the admissions program violated the Equal Protection Clause. Under this standard of review, the government needed to prove that there was a compelling reason for instituting the race-conscious policy and that the policy was “narrowly tailored” to achieving the goal. The Supreme Court decided in SFFA’s favor and determined that UNC’s admissions policy failed both requirements.

Government programs that use racial classifications to advance DEI are likely to face heightened skepticism from the current Supreme Court, given the Court’s reasoning in the Students for Fair Admissions decision. However, many government DEI programs are still completely lawful. Some government DEI programs may satisfy “strict scrutiny” by being narrowly tailored to a compelling governmental interest. Other programs that do not involve racial classifications (such as DEI programs focused on gender, sexual orientation, disability, or veteran status) will be subject to a lower level of scrutiny. Government actors can and should continue to advance racial equity through lawful means, such as through race-neutral policies that disproportionately benefit marginalized people.

Private organizations, by contrast, do not need to comply with the Equal Protection Clause, as the U.S. Constitution only applies to governmental entities. For information about programs designed to uplift or benefit marginalized groups more generally, including in the private sector, please review the Targeted Programs explainer.