The Supreme Court’s blinkered decision to end race-conscious admissions programs at America’s colleges and universities will have long-lasting, deleterious effects. Once again, this Court’s conservative majority has rejected the will of the American people, the majority of whom support affirmative action in higher education and the workplace. It also tarnished the aspirational spirit of our constitution’s 14th Amendment, which, by any honest reading of our laws and history, clearly aimed to further the freedom of formerly enslaved people after the Civil War and to protect them from attempts by defeated Confederate states to roll back the clock.
For Chief Justice Roberts to argue now that affirmative action programs violate the Equal Protection Clause of that Amendment is ahistorical. As Justice Ketanji Brown Jackson eloquently summed up in her dissent, “with let-them-eat cake obliviousness… the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.” But America has never been color-blind, and saying we have somehow achieved it now, so affirmative action is no longer needed, is being blind to the realities of our history and the many ways Black Americans still face discrimination today.
To explain why affirmative action is still necessary, we need only look at how our country has continually failed to live up to the equal protections embedded in the 14th Amendment. As Justice Jackson also noted, for decades after emancipation, our country took a blind eye to a legal regime that “forced Black people into sharecropping roles, where they somehow always tended to find themselves in debt to the landowner when the growing season closed, with no hope of recourse against the ever-present cooking of the books.”
By design, 20th-century political reforms also regularly left out Black people. As written in 1935, Social Security purposefully excluded agricultural and domestic laborers – jobs often held by Black Americans – to ensure Southern support. The Federal Housing Authority drew red lines around Black neighborhoods that made it nearly impossible for Black families to amass generational wealth through housing, and many of those neighborhoods eventually became prime targets for “urban renewal” and highway projects that wiped them off the map.
The GI Bill was also “deliberately designed to accommodate Jim Crow,” as Justice Jackson explains. Schools were segregated to ensure educational discrimination, which, in part, made possible the inequitable resourcing of so many public schools today. Black Americans found themselves stripped of the right to vote by Jim Crow, and even Justice Roberts was recently forced to concede that Alabama is still illegally gerrymandering districts to deny Black Americans their due representation in Congress.
The list of harms perpetuated against Black people in our laws and institutions seems never-ending, and their impacts remain pervasive. Today, Black Americans statistically suffer from lower incomes and wealth, higher unemployment, worse health incomes, disproportionate policing and incarceration rates – the list goes on and on.
How do we move forward after the Court’s terrible decision? As it happens, Chief Justice Robert opened the door for businesses to move in the right direction. In his opinion, he includes an exclusion for military academies on the grounds of “the potentially distinct interests that military academies may present.” Roberts, it seems, sees a national security advantage in our armed forces being diverse from top to bottom.
I think it naturally follows that if our armed forces shouldn’t be color-blind, businesses shouldn’t be either. Like the military, the private sector has an economic interest in ensuring its employee demographics reflect the lived experiences of the customers they wish to serve. Businesses also have an interest in hiring diverse leadership that will attract the best talent and in building products and services that will benefit the most people in our economy, which is only possible if the employees leading the design, sales, and marketing of products and services possess a diverse set of lived experiences. A recent McKinsey study confirmed these facts when it found that “the most diverse companies are now more likely than ever to outperform less diverse peers on profitability.”
Now that affirmative action has been outlawed, I am deeply concerned this ruling will be used to attack race-conscious employment practices and DEI initiatives. (As I noted in my column last month, some conservatives are already making noise in this direction, as is Justice Gorsuch, who brought up workplace discrimination law in his concurrence.) Before the decision, sixty major companies – including Apple, Starbucks, and General Electric – told the Court that “racial and ethnic diversity enhance business performance.” They’re right, and while companies can and should review their DEI practices now to ensure they still rest on solid legal grounding, they shouldn’t stray from that goal. There’s also nothing in the law that says companies can’t expand their recruiting efforts in minority-rich areas, including drawing talented candidates from historic black colleges and universities.
Should a case attacking DEI initiatives make its way before the Supreme Court, I hope the justices recognize that our economic interests are well-served by the same exception it made for the military academies. America’s businesses have a critical opportunity to demonstrate how essential diversity is to our economy and way of life.
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