Commentary

First universities, next workplaces: Supreme Court ruling could doom diversity initiatives

April 12, 2023 3:16 pm

The U.S. Supreme Court in Washington, D.C. Photo by Al Drago/Getty Images.

A pair of cases heard last fall and expected to be decided soon by the U.S. Supreme Court regarding affirmative action could have significant impact on employment relations in Minnesota and elsewhere, even though the cases are not strictly speaking about the workplace. 

Most observers feel that the super-majority of conservatives on the high court is inclined to overturn race-conscious preferential treatment programs for Black students at Harvard and the University of North Carolina in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College. Nothing that occurred in the dual hearings on Halloween last year changed that view; in fact, the derision, mockery and outright hostility expressed by the majority of those jurists magnified that outlook for the projected ruling, which is expected sometime before the tribunal concludes its current term in June. 

But the onlookers have paid scant attention to an even broader effect the ruling could have on employers.  

The anticipated decision dooming the legality of taking race or other traditionally protected class characteristics into account in academia could also deal a mortal blow to many diversity, equity and inclusion practices and protocols of employers.

Employers would be deterred from participating in DEI programs that provide race-conscious preferences in recruitment, hiring, retention and promotion of minority personnel for fear of becoming embroiled in costly, divisive and probably losing “reverse discrimination” litigation brought by aspiring or current employees alleging that they were given second-class treatment in the workplace. 

This would constitute a setback after decades of progress for women and members of racial, ethnic, religious and LGBTQ+ communities in corporate America and the business world in general. 

Ignoring lower courts

The two schools in the dual Supreme Court duels reportedly have spent more than $50 million so far in defending against the claims.

The money has been well spent so far. Harvard prevailed in the trial and appellate court in its case, which focused on claims of unfair limitations applied to Asian American applicants in favor of Black students, in violation of the Equal Protection clause of the 14th Amendment. 

UNC also won at both lower court levels, prevailing in an eight-day trial, which was affirmed by a federal appellate tribunal. 

The cases raise issues addressed in a trio of landmark litigation dating back more than four decades. In 1978, the Supreme Court — in a highly fractured decision that elicited a half dozen separate opinions — narrowly upheld the concept of California’s race-conscious college admissions, while striking down an explicit racial quota in Regents of the University of California v. Bakke. 

The Bakke brouhaha was followed 25 years later by the high court’s narrowly divided ruling in Grutter v. Billinger, upholding an admissions program at the University of California that gave preference to minority applicants.

Justice Clarence Thomas is the sole remaining judge from the Grutter case upholding affirmative action, and he sided with the dissenters. His view is well known: In his opinions and public pronouncements, he has expressed revulsion at affirmative action, while scoffing at the principle of racial diversity.  

Depending upon their wording and reasoning, the Harvard and UNC decisions may have significant effect on employment matters, potentially steering management in Minnesota and elsewhere away from reaching out to try to rectify past inequities in recruitment, hiring and promotion practices. The outcomes also could unleash a spate of litigation challenging those efforts. 

Naïve Nostrum

Federal and state anti-bias laws, like the Minnesota Human Rights Act, remain in effect. But their scope and strength in combatting invidious discrimination could be shredded if the justices in the nation’s capitol follow the overly-simplistic imploration by Chief Justice John Roberts in a 2007 case about undoing racial discrimination: “The way to get past racial discrimination is to get past racial discrimination.” His naive nostrum, paraphrased by him subsequently in a voting rights case, fails to take into account the crippling vestiges of past discrimination, which Roberts implied ceased with the end of the Civil War.

The six-member right wing on the high court is very likely to dismantle affirmative action when it gets around to ruling on the cases, as reflected in their dismissive colloquy during the five hours of Halloween hearings. 

For people of color, academic administrators and conscientious businesses, Halloween was truly a frightening day that forebodes badly for the future.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.

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