Federal Commissioner: Supreme Court Ruling Will Crack Down on Corporations’ Left-Wing Programs

The U.S. Supreme Court building in Washington on June 7, 2023. (Madalina Vasiliu/The Epoch Times)

Following last week’s landmark Supreme Court ruling targeting affirmative action at U.S. colleges, a top federal commissioner predicted that companies and corporations will see an increasing number of lawsuits over controversial left-wing diversity, equity, and inclusion (DEI) programs; as well as the equally controversial environmental, social, and corporate governance (ESG) measures.

“I think this is going to be a wake-up call for employers,” Employment Opportunity Commission (EEOC) Commissioner Andrea Lucas told Fox News last week. “Today is a time—the best time for lawyers to really take a really hard look at the lawfulness of their corporate diversity programs.”

Lucas told Fox last week that a number of businesses “don’t use the word affirmative action—it’s rampant today, from ESG, to focuses on equity, pretty much everywhere—there’s a ton of pressure at the corporate 100 across corporate America to take race-conscious decision-making, race-conscious actions in employment law, and that’s been illegal and it’s still illegal.”

There has been growing number of challenges to DEI programs in recent days, according to Lucas, coming even before the Supreme Court issued a 6-3 ruling that universities cannot take race into consideration when granting admission. The ruling is seen as landmark is it strikes down decades of precedent.

That case involved the admissions policy at the University of North Carolina at Chapel Hill, a public university, and Harvard University, the prestigious Ivy League college. Republican-appointed justices joined the majority, while all Democrat-appointed justices were part of the minority.

“I have noticed an increasing number of challenges to corporate DEI programs and I would expect that this decision is going to shine even more of a spotlight on how out of alignment some of those programs are,” said Lucas, who was confirmed by the U.S. Senate in September 2020. “And to be clear, I’m not criticizing all diversity programs, it really depends on how they’re structured.”

“But to the extent that they’re explicitly or implicitly taking race into decision-making for employment decisions, race-restricted internships, race-restricted mentoring, race-focused promotion decisions, etc. There are a host of employment decisions,” Lucas continued to say in response to the case. “If you are using race as any factor in your decision-making, you’re already violating the law,” she added, “and I expect that you are going to have a rising amount of challenges as this sort of raises that issue back to people’s attention.”

Racial Policies

Many institutions of higher education, corporations, and military leaders have long backed affirmative action on campuses in alleging that it’s used to remedy so-called racial inequality. But critics have said that giving advantages to one race of people regardless of the motivation is unconstitutional and would lead to destructive outcomes.

Affirmative action had withstood Supreme Court scrutiny for decades, most recently in a 2016 ruling involving a white student, backed by affirmative activist Edward Blum, who sued the University of Texas after being rejected for admission. Blum, who has long opposed affirmative action, is the founder of Students for Fair Admissions.

In ruling against the universities’ policies, Chief Justice John Roberts argued that a student should be treated as “an individual” and not as part of a collective group such as a race. Instead of focusing on an individual’s merits, universities have done the opposite, Roberts added.

“And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice,” Roberts stated, while that the two colleges “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Roberts in the majority. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented, with Sotomayor alleging that the majority’s ruling would “[entrench] racial inequality” for decades to come in the United States.

In spite of the order, some say that universities will continue to pursue race-based outcomes. A group that was involved in the lawsuit, Students for Fair Admissions Inc. (SFFA), said that schools will attempt to find a way around the ruling.

“We remain vigilant and intend to initiate litigation should universities defiantly flout this clear ruling and the dictates of Title VI and the Equal Protection Clause,” Edward Blum, the head of SFFA, stated in news release after the ruling. “The law will not tolerate direct proxies for racial classifications.”

The ruling is also a step backward, say pro-affirmative action groups.

“The Supreme Court’s ruling on affirmative action programs is a historic civil rights setback,” Domingo Garcia, president of the League of United Latin American Citizens, wrote in a statement last week. “This decision could make it significantly more difficult for minorities, particularly low-income first-generation Latino and DREAMER students, to enter higher education institutions. It puts them at an immense disadvantage and perpetuates societal inequality and injustice,” Garcia alleged.