On June 5, 2025, the Supreme Court decided Ames v. Ohio Department of Youth Services, a case about judicial standards for determining whether employment discrimination occurred, which favored or disadvantaged persons of different genders. What implications, if any, does this unanimous decision have for the “diversity, equity, and inclusion” (DEI) movement?
DEI’s Momentum and Judicial Pushback
Central to the DEI agenda is the imperative to classify all persons under its control into racial, ethnic, or gender categories. These persons do not need to assent to their classifications. Indeed, they may find their most important identities elsewhere in religion, politics, social class, occupations, family structures, etc. No matter, the DEI bureaucracy will not classify them in those categories because the movement’s endgame is to divide groups into those underrepresented and, by logic, overrepresented. Doing so makes it easier to assert that the former are oppressed and the latter oppressors. No identification of current specific discrimination is necessary before DEI-based preferences are employed.
The DEI movement had, until recently, enormous success. Campuses, corporations, media, professional associations, foundations, art institutions, sports teams, and many other private groups subscribed to the DEI ideology and backed up that adherence with substantial funding and compulsory hiring practices. Dissenting from DEI could be professional suicide in many areas of American life.
DEI’s ultimate victory appeared when President Joe Biden signed, on his first day in office, an executive order titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” Because of these orders, federal funding in many agencies, even for scientific research awards, suddenly became contingent on incorporating DEI goals.
Particularly affected were the expansive new federal COVID-19 relief programs. Although it was obvious that all Americans could be infected during the pandemic, federal agencies used DEI concepts to distribute funds. The United States Department of Agriculture (USDA) declared that the Biden-Harris Administration was committed “to equity across the Department by removing systematic barriers and building a workforce more representative of America.” In 2021, the USDA would forgive 13,000 to 15,000 loans to non-white food producers at a potential cost of up to $4 billion. A subsequent USDA program excluded white farmers from disaster relief funds.
Some states began to follow “equity” redistribution efforts. In Minnesota, for example, Governor Tim Walz signed a law in May 2023 providing state grants to help “emerging” farmers make down payments to buy land. A wide range of persons were prioritized for the limited state appropriations available, unless they were able-bodied, heterosexual white men.
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As these DEI programs were embedded so widely in both the public and private sectors, at first, it seemed nothing could stop them. Then, conservative ligating agencies began court challenges. The Wisconsin Institute for Law and Liberty (WILL) and the Southeastern Legal Foundation won cases against USDA preferences in five federal district court cases all over the country. (Wynn v. Vilsack, Faust v. Vilsack, Miller v. Vilsack, Holman v. Vilsack, and Strickland v. Vilsack).
A powerful new anti-DEI judicial standard was articulated in another 2021 case (Vitolo v. Guzman), instigated by WILL, which ended the restaurant relief policy of deprioritizing white male owners. The Sixth Circuit held:
The government has a compelling interest in remedying past discrimination only when three criteria are met.
First, the policy must target a specific episode of past discrimination.
Second, there must be evidence of intentional discrimination in the past. Statistical disparities don’t cut it, although they may be used as evidence to establish intentional discrimination.
Third. The government must have had a hand in the past discrimination, it now seeks to remedy.
In 2024, the Pacific Legal Foundation (PLF) challenged Minnesota’s land distribution race and sex priorities on equal protection grounds. Before a judicial decision could be reached, Governor Waltz quickly signed legislation removing the racial and sexual priorities.
All over the country, state requirements that their professional licensing boards reserve seats for women and minorities have been abandoned after litigation began. Race-based scholarships have been found illegal on dozens of campuses and organizations, such as the American Association of University Women, the American Chemical Society, Southwest Airlines, and McDonald’s, have altered them to become race-neutral.
Of great consequence, decades-old federal preferential programs have not survived federal district court scrutiny in a flurry of decisions. The 8(a) program’s racial procurement preferences ended in 2023 when the Center for Individual Rights won in Ultima Services Corporation v. US Department of Agriculture. The Minority Business Development Administration gave up excluding white owned businesses from its services after the 2023 Nuziard v. Minority Business Development Agency decision. The Disadvantaged Business Enterprise (DBE) program is now subject to a 2025 proposed consent decree between the Department of Justice and WILL that will end preferences for minority and women-owned firms competing for federal transportation grants for highways, airports, and seaports across the country. Significantly, none of the Covid-era or subsequent preferential business decisions were appealed by the Biden Department of Justice.
The most important rebuke to racial preferences ostensibly used to promote diversity was the Supreme Court’s 2023 decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard CollegeandStudents for Fair Admissions, Inc. v. University of North Carolina (SFFA). The Court found that public and private campus use of such admission preferences violated the Fourteenth Amendment’s Equal Protection Clause and Civil Rights Act’s Title VI, because “race may never be used as a ‘negative’ and … may not operate as a stereotype.” Furthermore, the racial and ethnic categories commonly used in DEI programs were “imprecise,” “overbroad,” and “arbitrary.”
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Unusual Facts Create Rare Judicial Unanimity in Ames
Given the already emerging judicial opposition to racial classifications and preferences since 2021 in a variety of courts in multiple contexts, what impact will Ames have on the DEI movement? Like many Supreme Court decisions, Ames can be read very narrowly. The case specifically involved a judicial test developed after the Court’s 1973 McDonnell Douglas Corporation v. Green decision. How should courts consider employment discrimination claims when there were no clear-cut discriminatory rules involved, only contentious claims of discriminatory treatment? Marlean Ames had worked for the Ohio Youth Services agency since 2004 and was eventually promoted to program administrator. In 2019, she applied for a new upgraded management position, but her supervisors rejected her bid and then demoted her, resulting in a significant pay cut. There could be many reasons for that action, but the fact was that Ames was a heterosexual woman, and the promotion went to a lesbian, and her old job was awarded to a gay man. Sorting out the motives involved to see whether a Title VII violation had occurred would be complicated. The District Court and later the Sixth Circuit ruled in summary judgment that Ames did not even make a prima facie showing of discrimination. As a member of a majority group, she had an “additional burden” of not possessing the “background circumstances” which those courts and in four other circuits around the country thought were necessary to weigh the particular evidence. Those “circumstances” meant that it would only be a “rare employer” that would discriminate against members of a majority group, a perfect DEI sort of analysis.
Justice Gorsuch, however, said during oral argument that the Supreme Court was in “radical agreement.” The background circumstances rule was struck down 9-0, and the case remanded for further consideration. So, did Ames resolve any broader questions? Justice Ketanji Brown Jackson wrote the nine-page Court opinion stating that Title VII’s text “draws no distinction between majority-group plaintiffs and minority-group plaintiffs. The provision focuses on individuals rather than groups.” Contrary to DEI theory, Congress had established the same protection for every individual without regard to the individual’s membership in a minority or majority group.
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Justice Thomas, joined by Justice Gorsuch, concurred and took on the larger question of the legitimacy of making legally relevant group distinctions. That issue had decided the fate of group preferences in the lower courts in Vitolo, Ultima, Mid-America, and Nuziard. Citing SFFA. The concurring Justices reiterated that the Fourteenth Amendment’s Equal Protection Clause and Title VII cannot be applied differently to individuals depending on their assigned group membership. Furthermore, they challenged the whole concept of “majority” and “minority” groups. Women, they pointed out, are a statistical majority nationally, but a minority in some occupations and a majority in others. Racial groups may be minorities nationally, but may predominate in many localities. Further, racial categories are frequently overbroad because “American families have become increasingly multicultural and attempts to divide us all up into a handful of groups have become only more incoherent with time.” They declared: “Thankfully today’s decision obviates the need for courts to engage in the ‘Sordid business of divvying us up by race or any other protected trait.’” Finally, citing from an America First Legal Foundation brief, the justices found that the “background circumstances” rule was “nonsensical” because “a number of this Nation’s largest and most prestigious employers have overtly discriminated against those they deem members of so-called majority groups. American employers have long been ‘obsessed’ with ‘diversity, equity and inclusion’ initiatives and affirmative action plans.”
The Trump Administration’s three major anti-DEI executive orders (“Ending Radical and Wasteful Government DEI Programs and Preferences,” January 20, 2025; “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” January 21, 2025; and “Ending Radical Indoctrination in K-12 Schooling,” January 29, 2025) not only revoked old DEI policies, but commanded specific disabling actions by the federal bureaucracy. These initiatives may not survive another administration, but it is highly unlikely that the text of the Fourteenth Amendment or the Civil Rights Act’s Titles VI, VII, and IX will change. Hundreds of DEI-based group preferences still exist in governmental and private programs all over the country. Federal courts, however, have established multiple precedents that all individuals are entitled to equal protection and that the group-based preferences on which DEI depends are illegal. The Ames decision is another important plank in that Constitutional foundation.
Since Ames is a very new decision, it has not yet been cited by other courts or other rule-making bodies. It is consistent, however, with the direction lower courts have been going since 2021 in striking down preferential programs. Furthermore, it is a unanimous SCOTUS decision, written by Justice Ketanji Jackson Brown, the most likely justice on the Court to dissent on civil rights issues. The Court’s affirmation that persons identified as part of a “majority” or a ” minority” group have the same civil rights is a very powerful, simple rule that will eventually have an enormous effect in a variety of settings and will undermine the group-based premises of all DEI programs.
Image: “Panorama of United States Supreme Court Building at Dusk” by Joe Ravi on Wikimedia Commons
