By the end of this month, the U.S. Supreme Court will make a decision regarding the racially biased affirmative action admission policy being followed by certain educational institutions—with the ruling potentially affecting diversity initiatives in corporate America as well.
The affirmative action decision is related to two cases filed by the Students for Fair Admissions (SFFA) against Harvard College and the University of North Carolina. In both lawsuits, SFFA is seeking to overturn the Grutter v. Bollinger U.S. Supreme Court 2003 decision that upheld race-conscious admission policies in universities. The SFFA argues that such policies discriminate against whites and Asians.
“Harvard automatically awards racial preferences to African Americans and Hispanics,” the SFFA says in its court filing (pdf) in the Harvard lawsuit. Under the Grutter v. Bollinger ruling, universities can use race “only as a ‘plus,’” the filing said. “Race cannot be a minus for any applicant.”
However, Harvard has “repeatedly penalized one particular racial group: Asian Americans,” it stated. “Harvard concedes that Asian Americans suffer a penalty on the personal rating—that changing an applicant’s race from White to Asian lowers the personal rating to a statistically significant degree,” per the filing.
“Harvard also concedes that, when this tainted variable is removed, projected Asian-American admissions increase to a statistically significant degree.”
In the Harvard lawsuit, the Supreme Court will have to decide whether to overrule Grutter v. Bollinger and if the prestigious educational institution is violating Title VI of the Civil Rights Act prohibiting race-based admissions. If such discrimination is done by a public university, this would be a violation of the Equal Protection Clause.
In its defense, Harvard insists (pdf) that “for more than 40 years, the Supreme Court has established and repeatedly affirmed that race can be one of many factors considered in college admissions.” The university blamed SFFA for attempting to “challenge diversity.”
Experts expect the Supreme Court to rule in favor of rolling back affirmative action policies, a decision that will impact not only the college admission process but also diversity, equity, and inclusion (DEI) agendas in companies.
Corporations’ DEI Inclination
While affirmative action aims to boost the presence of certain communities in educational institutions, DEI initiatives at corporations seek to do the same in employment.
DEI forces companies to address social issues like racial and ethnic inequalities instead of merit. Under the guise of DEI, several corporations have instituted programs to boost the employee count of minority racial and ethnic populations, thereby ending up discriminating against people of other ethnicities and races.
Upturning Grutter vs. Bollinger while siding with SFFA in its case against Harvard and the University of North Carolina by SCOTUS will change the status quo.
In an interview with Axios, Andrew Turnbull, a partner at law firm Morrison Foerster, said that if the Supreme Court rules against race-conscious admissions, companies may start to see an increase in reverse discrimination claims for their DEI programs.
“When people hear affirmative action has been overruled, they may say, ‘Well, why is my company still doing diversity programs?’” he said.
Several organizations are already acting against DEI’s discriminatory policies at businesses. America First Legal has filed federal civil rights complaints with the U.S. Equal Employment Commission (EEOC) against multiple companies for “illegally engaging in discriminatory employment practices that penalize Americans based on race and sex.”
Corporations facing AFL discrimination lawsuits include Starbucks, Morgan Stanley, McDonald’s, Anheuser-Busch, Hershey, and BlackRock.
DEI Discrimination in Hiring
BlackRock Chair and CEO Laurence D. Fink attends a session at the World Economic Forum (WEF) annual meeting in Davos, on Jan. 23, 2020. (Fabrice Coffrini/AFP via Getty Images)
Several organizations are under scrutiny for their explicit promotion of discriminatory hiring practices. For instance, In a 10-K filing, progressive investor BlackRock states that it is committed to “cultivating diversity, equity, and inclusion in its workforce and leadership team through its hiring, retention, promotion, and development practices,” according to AFL.
As part of this, the company has “set goals for increasing the overall workplace representation of US Black and Latinx employees and growing the number of senior women globally and US Black and Latinx leaders at the Director level and above.”
Meanwhile, AFL’s civil rights complaint against Anheuser-Busch, the maker of Bud Light, claims that the company is “knowingly, intentionally, and unlawfully discriminating based on race, color, national origin, and sex with respect to employment and job training opportunities.”
AFL pointed to Anheuser-Busch’s 2023 Leadership Accelerator Program, which provides individuals from certain ethnicities with leadership development programs as they join the company in a full-time position.
“We encourage candidates who identify as Black, Latinx, and Native American to apply, as well as those who identify with a historically underrepresented group,” the job profile states.
Companies are also extending their DEI initiatives to influence customers as well—a move that has triggered a backlash in recent times, with Anheuser Busch and mega-retailer Target suffering from widespread customer condemnation and boycotts resulting in lower market share.
Anheuser-Busch’s Bud Light became the target of a boycott campaign starting in April after the company used transgender social media personality Dylan Mulvaney in a promotional campaign, which people saw as pushing a transgender agenda. Between April 3 and June 22, Anheuser-Busch’s market capitalization fell from $134.14 billion to $116.65 billion—a loss of over $17 billion.
Similarly, Target faced boycott calls after rolling out its Pride collection at the beginning of May, which included some items targeted at children. Between May 1 and June 22, Target’s market cap declined from $72.42 billion to $61.02 billion.
Companies and lawmakers across the country are eagerly awaiting the Supreme Court’s affirmative action ruling which will translate to policy changes in executive boards nationwide.
