“The laws surrounding affirmative action in employment haven’t changed.
Federal contractors have been required to take affirmative action, steps to ensure applicants are treated fairly, since 1965 when President Lyndon Johnson signed Executive Order 11246. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.
Under the Equal Employment Opportunity Commission’s guidelines on voluntary affirmative action, employers are encouraged to take voluntary steps to “correct the effects of past discrimination and to prevent present and future discrimination” such as expanding their applicant pools to ensure a diverse body of applicants for any given position.
As the Equal Employment Opportunity Commission noted in a statement after the decision, the cases do not “address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background,” clarifying that it is still legal for “employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
Still, legal threats from right-wing organizations that have already spent years trying to get organizations, including Starbucks and McDonald’s, to end their DEI programs could increase.
The Supreme Court’s decision to ban race-conscious measures in college admissions is likely to encourage more lawsuits against race-conscious policies in employment, said Pauline Kim, an employment law expert at the Washington University in St. Louis School of Law.”
“Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”
The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.
I wish that the Court had shown more humility instead.
That’s because the military leaders’ views are shared by an equally long list of America’s largest employers — a list that includes companies as diverse as Apple, Levi Strauss, Northrop Grumman, Starbucks, and United Airlines — all of whom warn that American business will be less dominant because of the Supreme Court’s decision in Students for Fair Admissions.
To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”
And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.””
…
“six lawyers with little specialized expertise in business, education administration, national defense, or medicine, declared that they have found the answer to America’s longstanding questions about race and diversity — and that they know more than individuals and institutions with far greater expertise than someone who spends their days reading documents in a marble palace could ever have.”
“The immediate question in the two lawsuits before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — was whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.
According to Vox’s Ian Millhiser, the decision does not explicitly overrule the Court’s previous decisions permitting affirmative action, but it will almost certainly have the same effect as a total ban.
The overarching stakes in these cases, however, are much broader. The plaintiffs advocated a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. The Harvard and UNC decision is likely to eliminate that authority altogether.”
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“Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body, and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The Court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the Court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.
Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”
Now, this kind of rhetoric is being echoed by Blum (who was, notably, also involved in the Fisher case). “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement in January. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.””
“In a ruling on two related cases on Thursday written by Chief Justice John Roberts, the Supreme Court just ended affirmative action in higher education as we know it.
The two cases — Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina — both argued that the use of race in college admissions should end, but for slightly different reasons. In the Harvard case, the plaintiffs claimed that the admissions practices of Harvard discriminated against Asian American applicants by placing a cap on the number admitted. In the North Carolina case, the plaintiffs asked the court to rule that universities can’t use race as a factor in college admissions and must use a race-neutral approach, which they argued can achieve student-body diversity.
The court — with the six Republican-appointed justices on one side and the three Democratic-appointed justices on the other — agreed that Harvard’s practices resulted in fewer Asian American applicants being admitted. And they found that the practices of both colleges violated the equal protection clause of the 14th Amendment. Roberts echoed earlier rulings where he and other conservative justices stressed that the Constitution requires a colorblind reading, making any consideration of race wrong. “Eliminating racial discrimination means eliminating all of it,” he wrote.
The justices in the minority did not accept that interpretation — to put it mildly. In her dissent, Justice Ketanji Brown Jackson excoriated the court for failing to address the “gulf-sized race-based gaps” in American life, and criticized the idea that using race as a factor in holistic admissions is unfair. “This contention blinks both history and reality in ways too numerous to count.” she wrote. “But the response is simple: Our country has never been colorblind.”
And although it’s a quiet — not explicit, but functional — reversal of more than 50 years of precedent, this decision might actually be popular. A poll designed to capture public opinion on major Supreme Court decisions this term found that strong majorities of Americans agree that public (74 percent) and private (69 percent) colleges and universities should not be able to use race as a factor in college admissions. Questions that remind respondents of the goal of affirmative action — to increase the numbers of Black, Hispanic and other underrepresented students on elite campuses — tend to generate more support. But people also don’t think minority groups should be given “special preferences.””
https://www.politico.com/news/magazine/2023/06/16/supreme-court-affirmative-action-college-00101963
“Black enrollment fell rapidly at the top schools in the University of California system. Before the ban, Black students made up 7% of the student body at UCLA. By 1998, that figure had slipped to 3.93%. By the fall of 2006, the freshman class included only 96 Black students out of nearly 5,000.
In an effort to address that gap, officials in California have spent more than $500 million in outreach to underserved minority students since 2004, lawyers for the state said in a Supreme Court brief this year.
A similar decline took place at the University of Michigan. Black undergraduate enrollment dropped to 4% in 2021 from 7% in 2006, the year the state approved a referendum banning affirmative action.
Even though a Supreme Court ruling restricting the use of race-conscious admissions is unlikely to affect their states, lawyers for Michigan and California filed briefs with the court over the summer arguing that without affirmative action, achieving racial diversity was virtually impossible.
Florida, which banned affirmative action in 2001 and where admission to the state’s flagship university is also competitive, has taken the opposite position: Racial diversity can be achieved without race-conscious admissions, it said.
A study in 2012 by liberal-leaning research group the Century Foundation found that in most states where affirmative action was prohibited, Hispanic and Black enrollment at flagship universities bounced back after an initial drop.
But the study also showed that those increases did not generally keep pace with the growing number of Hispanic and Black high school graduates.”
https://www.vox.com/policy-and-politics/2022/10/31/23433183/supreme-court-affirmative-action-harvard-unc-race