After the Supreme Court’s affirmative-action decision, the conservative legal movement is not only attempting to make sure universities comply with the ruling, but also eyeing a new arena: employment.
A group of 13 Republican attorneys general wrote to the CEOs of Fortune 100 companies Thursday warning that their companies may face “legal consequences” if they discriminate on the basis of race in their decision-making. It doesn’t matter if said discrimination is for “benign purposes,” argued the AGs, adding that they mean decision-making with respect to hiring, firing, promotion, and contracting with other businesses.
The chief lawyers in these states join others like Edward Blum, who led the charge against affirmative action. He suggested employment as the next frontier in a recent interview with the New York Times.
“The letter is intended to notify America’s largest corporations that the impact of the Supreme Court’s recent decision on affirmative action goes beyond university admissions and effects the 14th Amendment and Title VI with respect to all so-called beneficial racial discrimination,” explained Kansas attorney general Kris Kobach in an interview with National Review.
The breadth of the decision has been read differently by lawyers on either side. There has even been a dispute about whether the decision applies to university programs outside of just admissions. America First Legal Foundation argued in letter to 200 law schools late in June that the decision also applies to faculty hiring and law-review membership, among other things. In response to the letter, Dean Erwin Chemerinsky of the University of California, Berkeley School of Law took the opposite tack, arguing it only applies college admissions.
Asked to respond to this dispute, Kobach noted that he believes lawyers on the left will try to find ways to circumvent the Supreme Court’s decision. However, in his view, the precedent as articulated in the recent Supreme Court ruling can and ought to be applied to other fact patterns, both at a university and at other institutions, such as America’s corporate class.
Kobach also pointed to Justice Neil Gorsuch’s concurring opinion emphasizing that Title VI of the Civil Rights Act of 1964 does not permit race-based discrimination. He and the other AGs argued in the letter that “courts routinely interpret Title VI and Title VII in conjunction with each other, adopting the same principles and interpretation for both statutes.” The latter applies more narrowly to employment.
“The discrimination in hiring and employment practices is very similar because you’re looking at applicants for jobs just as you’re looking at applicants for admissions to universities and the fact the Court noted the similarity adds additional weight to applying the Supreme Court’s recent precedent to employment practices,” Kobach said.
According to the attorney general, many of these companies use explicit quotas but others discriminate on the basis of race in a less numerically obvious fashion. The letter mentions a number of American companies by name, including Airbnb, Apple, Facebook, and Google. The AGs also point to Microsoft’s 2020 announcement that it would set a quota for the number of black-owned approved suppliers over three years and demand annual diversity disclosures from its top 100 suppliers.
“Well-intentioned racial discrimination is just as illegal as invidious discrimination,” reads the letter, adding that “every racial preference necessarily imposes an equivalent harm on individuals outside of the preferred racial groups.”
According to Kobach, at this point, the signatory attorneys general are just informing the companies that they would be in violation of federal and state laws if they discriminate on the basis of race.
“The companies need to be given a reasonable amount of time to comply with the law,” he said.
The Kansas attorney general added that, in cases like this, states often rely upon “individuals who are discriminated against notifying the attorney general or notifying their state representative or notifying someone in state government.”
However, Kobach will also be keeping a close eye on Kansas companies and said proactive investigations are an option.
The attorney general clarified that a company simply having a DEI program is not dispositive.
“DEI is the label that companies often apply to their programs and some of those programs may expressly discriminate against prospective employees based on their skin color. Others may not,” said Kobach.
However, “the DEI label doesn’t free a company from its obligation to follow federal law whether they use that label as a cover for what’s going on or whether they’re using it for some other purpose.”
Blum concurred to the Times, arguing that DEI programs are not actionable on their own. “It is not illegal for a corporation to hire a DEI officer and staff that office with dozens or hundreds of people and compel employees to listen to speeches,” Blum said.
National Review also asked Kobach to weigh in on the Supreme Court ruling’s impending implementation at universities in his state and elsewhere. The attorney general said he’ll certainly be looking at whether universities comply with the ruling.
Roberts said in his majority opinion that applicants may still discuss how race has affected their lives, through discrimination, inspiration, or otherwise. However, Roberts clarified that universities may not simply institute through an admissions essay or by any other means what the Court declared unlawful in late June. Thus, if individualized assessments lead to the exact numerical goals desired by the universities, such a regime is unlikely to survive future challenges.
In response to the ruling, groups on the other side of the legal spectrum are considering challenges of their own. Left-leaning organizations have begun a concerted effort to end legacy admissions, arguing it is preferential towards white people. However, Kobach wasn’t convinced of the way these groups were applying Roberts’s view that “eliminating racial discrimination means eliminating all of it.” He said the Court doesn’t speak directly to legacy admissions and that the fact pattern is different.
Blum concurred in thinking that the recently-filed civil rights complaint against legacy admissions would fail even though he thinks it’s a “wonderful endeavor” to end all unfair admissions practices.
According to the 13 attorneys general who wrote to CEOs Thursday, “social mobility is essential for the long-term viability of a democracy, and our leading institutions should continue to provide opportunities to underprivileged Americans.”
“Race, though, is a poor proxy for what is fundamentally a class distinction. Responsible corporations interested in supporting underprivileged individuals and communities can find many lawful outlets to do so,” they explained. “But drawing crude lines based on skin color is not a lawful outlet, and it hurts more than it helps.”