The US Supreme Court is coming for workplace diversity initiatives next

Conservative justices made clear they are ready to bar affirmative action, not just by universities, but private employers, too
It's the most diverse US Supreme Court ever, not that they're counting.
It's the most diverse US Supreme Court ever, not that they're counting.
Photo: Olivier Douliery/AFP (Getty Images)
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Sometime next year, the US Supreme Court will rule that private universities can no longer consider the race of applicants when deciding whom to admit.

That much was clear from oral arguments in two related cases the court heard on Monday, Oct. 31. Six of the nine justices appeared set to end affirmative action programs that have helped diversify American campuses for decades, suggesting strongly in their questions that any race-based advantage in admissions was inherently discriminatory against other applicants.

But the court won’t stop at the ivory tower. Its next stop is likely the workplace, where commonplace diversity initiatives will be found unconstitutional using the same logic. The thinking that leads conservative justices to bar consideration of race in university admissions will apply just as easily to corporate hiring practices, when such a case inevitably reaches the court.

In that sense, Monday’s arguments (pdf) could be heard with even broader significance.

“Only a little racial discrimination?”

Justice Samuel Alito twice described college admissions as “a zero-sum game,” in which one person’s advantage is inherently someone else’s disadvantage. Hiring, of course, is a very similar kind of marketplace for talent.

Chief justice John Roberts stressed that even considering race among a wide range of factors, which is the prevailing practice at most universities and companies alike, amounted to racial discrimination. When a lawyer for Harvard said race was rarely the deciding factor in its admissions decisions, Roberts retorted, “So there’s only a little racial discrimination in the case?”

As a matter of law, the cases heard Monday will only affect public schools (under the 14th Amendment, which prohibits states from denying anyone “equal protection of the laws”) and most private universities (under Title VI of the Civil Rights Act of 1964, which prohibits discrimination in programs that receive federal funding).

Hiring discrimination is covered under Title VII, which guarantees “equal employment opportunity” at most private firms and the world’s largest employer, the US government. But the language of Titles VI and VII are similar, and there’s no reason to think the court wouldn’t apply similar logic.

“If and when the court rules that the meaning of Title VI tracks the meaning of the equal protection clause of the Constitution, barring the consideration of racial diversity in admissions, it would be a logical conclusion for the courts to treat the language of Title VII as having a similar effect in the workplace,” writes Harvard Law professor Noah Feldman.

“Don’t have a clue what it means”

Even the well-established American idea of a melting pot, that diverse groups are preferable to homogeneous ones, seemed to be up for debate on Monday.

“I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” said justice Clarence Thomas, who has been a consistent voice against affirmative action, even when the court has upheld the practice. The difference now is that his conservative block has grown into a supermajority.

Diversity is a measure of demographic dissimilarity within a group, as justice Thomas well knows. His comment meant to question the now widely held belief, not just on campuses, but in c-suites and most households, that racial diversity is valuable and worth seeking. It’s this bedrock principle of modern American life that the court treats with great skepticism.

University administrators say ending race-based preferences in admissions will lead to far fewer Black and Hispanic students at selective schools. They know because that’s what happened in states where public universities have already been forced to stop considering the race of their applicants. It will also weaken the pipeline of talent applying to jobs in competitive industries.

“How do you know when you’re done?”

Though the cases in front of them were limited to university admissions, many of the justices spoke much more broadly about racial preferences.

Brett Kavanaugh, whose appointment under president Trump helped swing the court rightward, seemed to speak for the new majority when he declared, “Racial classifications are potentially dangerous and must have a logical end point.”

He was claiming the mantle of a prior Supreme Court decision that contemplated a time when racial preferences would no longer be necessary to achieve a diverse student body. Amy Coney Barrett, another of the new conservative justices, suggested diversity initiatives were inherently flawed because, “How do you know when you’re done?”

Their implication was that the era of sanctioned racial preferences in the US is coming to a close, and that college admissions just happened to be the specific question before them.

“How can you do diversity without...numbers?”

Feldman, the Harvard law professor, predicts that lower courts will start to look skeptically at programs that encourage a diverse workforce, even before the Supreme Court officially speaks to that question. Firms, too, will be more circumspect about how they describe diversity initiatives, which is hard to imagine because US corporate law is already consumed with paranoia about employment discrimination.

The impact will be far greater than changes to university admissions, not only because more people work than go to school, but also because employers emphasize diversity of gender, sexuality, and other traits, in addition to race.

“The most likely result, I think, is that corporations will begin to back away from rhetoric that emphasizes the concept of diversity—as quickly and quietly as they can,” Feldman wrote ahead of Monday’s arguments.

All of those dramatic changes will come before the Supreme Court actually weighs in on corporate diversity initiatives that are now commonplace—for instance:

  • saying the company wants to hire more women engineers;
  • setting a goal for the company’s workforce to reflect the demographics of the community it serves;
  • considering a candidate’s gender, race, or ethnicity when hiring for a role on a homogenous executive team; or
  • creating rules about the composition of a finalist pool—for instance, that the company must interview at least one minority for any position.

It’s impossible to know precisely how the court will rule when presented with these situations, but nothing about their views on affirmative action suggests a desire for moderation. The court’s stance appears to be that any consideration of race that results in unequal treatment is unconstitutional, which would put all of the diversity initiatives above on the chopping block. As Roberts put it in a 2007 decision that summarized this view: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

There was not much credence given by the conservatives on Monday to the notion that affirmative action policies are meant to address existing inequities. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, from the liberal wing, advanced those arguments, which are pretty mainstream in the US. Prohibiting consideration of race, justice Jackson said, “seems to me to have the potential of causing more of an equal protection problem than it’s actually solving.” But the conservative view that will prevail in the admissions cases—and in the hiring cases to come—is that seeing race at all is the original sin.

“How can you do diversity without taking account of numbers?” asked justice Neil Gorsuch, who rounds out the six-justice majority.

Here, at least, was a very good question.

You can’t—not well, anyway. Making it illegal for schools and companies to take account of their numbers (Are Black students on this campus fairly represented? Why are there no women on the sales team?) is precisely the aim of conservatives who brought these university admissions cases to a newly sympathetic Supreme Court and are coming for corporate hiring next.

Because the goal is not to “do diversity” at all.