The non-discrimination principle states that no one should be subjected to detriment on the basis of race, sex, or other protected grounds. To most people, that simply means formal equality—treat everyone the same as required by the equal protection clause of the Fourteenth Amendment. But what does treating everyone the same mean in practice, and what is the legal test for resolving complaints about unequal treatment?

The question to be decided in the 1954 United States Supreme Court case of Brown v Board of Education was whether “separate but equal” school facilities violated the equal protection clause. The school facilities were equal, measured by factors such as facilities, curriculum, and funding. The problem was that they were racially segregated. Does racial segregation, in itself, violate the principle of equality? Does the principle of equal treatment encompass egalitarian ideals of racial harmony and mandatory racial integration? These questions are far from being settled, as they have arisen yet again in the constitutional debates surrounding anti-DEI legislation. …

Brown v Board of Education illustrates how the Fourteenth Amendment equal protection clause has been transformed by the Supreme Court into a tool for social engineering. It performs this function by creating special rights for special groups based on their identity and coercing people into contracting or associating with others against their will. The notion of “diversity” is perfectly suited for this type of social engineering, as is clear from other Supreme Court decisions. In the 2003 case of Grutter v. Bollinger, the Supreme Court held that it was lawful for universities to discriminate based on race in their admissions process (though only temporarily) in order to achieve alleged “educational benefits of diversity.” The case of Bollinger was recently overruled by the Students for Fair Admissions case which prohibits affirmative action in college admissions, but the concept of “diversity” established in extensive case law is still influential. Bollinger purported to uphold the 1978 case of Bakke, a “binding precedent establishing diversity as a compelling state interest.” In Bakke, “Justice Powell emphasized that the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation.” In Bakke Justice Powell had emphasized that by diversity he did not simply mean racial quotas. Under the Bollinger principle, diversity was seen as a legitimate goal even though quotas and targets were still illegal. But in reality, unofficial quota systems are difficult to police if they are framed as “promoting diversity,” as long as the justification given is that race or ethnicity is “but a single though important element” rather than being the sole qualifying criterion.

Social engineering—through concepts of “equality” or “diversity”—is incompatible with liberty. The egalitarian premise—which was used by Radical Republicans to justify pushing through the Fourteenth Amendment and override the objections of the Southern States who were opposed to it—must be rejected. Egalitarianism poses an insurmountable threat to individual liberty. As Murray Rothbard pointed out, “the individualist is not an egalitarian.” The individualist does not evaluate his own life entirely by comparison with others, nor call in the state to “equalize” his life experience with that of others.