Ruling on Affirmative Action Could Affect Hiring

A recent legal analysis by the conservative-leaning Philanthropy Roundtable argues that the Supreme Court ruling barring affirmative action in college and university admissions could have far-reaching consequences for race-conscious hiring practices in philanthropy and the nonprofit sector.

Employers who may have been using similar practices to higher education…may be open to legal scrutiny and liability.While the Supreme Court decision ostensibly addressed only admissions practices in higher education, the legal basis for the ruling could potentially be extended in the near future to any entities receiving federal funding and general hiring practices in the private sector, whether or not the employer is a recipient of such federal funds.

“This means that employers who may have been using similar practices to higher education, where policies resulted in decisions being made on the basis of an individual’s race, may be open to legal scrutiny and liability for violating anti-discrimination law,” a summary of the report states.

The report’s conclusions are based on a legal analysis on behalf of the Philanthropy Roundtable by Jonathan Berry, an attorney at Boyden Gray PLLC, and a former head regulator for the US Department of Labor.

The analysis does not hide a conservative orientation toward affirmative action. Berry writes, “In many ways, higher education had long been a notable exception to the otherwise-stringent prohibitions in the Fourteenth Amendment and Title VI against racial discrimination,” effectively equating affirmative action with “racial discrimination.”

But Mr. Berry’s conclusions regarding the implications of the decision for the private sector largely mirror similar ones drawn by other commentators of different political stripes in recent weeks, including Harvard Law Professor Noah Feldman and the Center for the Study of Diversity and Democracy at Northwestern University Director Alvin B. Tillery, Jr., among others.

In distributing Mr. Berry’s analysis of the recent Supreme Court decision on affirmative action, the conservative-leaning Philanthropy Roundtable is, by and large, echoing points being emphasized (albeit with far more apparent concern) by experts and commentators who seek to protect and preserve DEI beyond higher education.

Larger Implications of the Supreme Court Ruling

At the heart of Mr. Berry’s analysis are two broad areas, or titles of federal statute: Title VI, which addresses entities that receive federal funding; and Title VII, which addresses discrimination in employment.

It was Title VI, federal funding, that was the basis of the US Supreme Court’s intervention into admissions practices at colleges and universities which, although private, receive substantial federal funds.

In theory, the Court’s decision on affirmative action applied only to admissions in higher education. But while it may be tempting to see higher education as a realm unto itself, private colleges are, of course, corporations. And while the Court didn’t extend its ruling into what might be considered more traditional corners of the private sector —including nonprofits—Berry argues that there is nothing in the decision precluding the Court’s doing so. The Court’s ruling on affirmative action, Berry reasons, could be applied more broadly to hiring or other practices on the part of any organization receiving federal funds.

“Organizations that receive targeted funds for specific programs could be liable under Title VI for racial considerations in how those programs are implemented,” Berry writes. “Organizations receiving federal funds ‘as a whole’ or that are ‘principally engaged in the business of providing education, health care, housing social services, or parks and recreation’ could also face broader liability for racial preferences by the organization in its operations.”

“Some lower courts would probably take the view that…the [Supreme Court] has already done enough to make it clear that you can no longer use racial diversity as an objective in workplace hiring.”

Meanwhile, Berry notes, while Title VII—a statute applying to discrimination in employment—has allowed for affirmative action measures to “eliminate manifest racial imbalances in traditionally segregated job categories,” the recent Supreme Court ruling could be a death knell for broad interpretations of the legality of such affirmative action policies.

The ruling, Berry sums up, “suggests race-based affirmative action—including to achieve diversity or remedy societal discrimination—is prohibited.”

In an interview with NPR, Harvard Law Professor Noah Feldman drew a similar conclusion: “Some lower courts would probably take the view that…the [Supreme Court] has already done enough to make it clear that you can no longer use racial diversity as an objective in workplace hiring.”

In response to the Court’s ruling on affirmative action, at least two members of the US Equal Employment Opportunity Commission issued contrary statements, one emphasizing that the decision did not apply to private sector employment, and another cautioning that “the Court never has blessed employers taking race-conscious employment actions based on interests in workforce diversity.”

“At the very least, [the recent decision] signals that the Supreme Court looks skeptically on racial discrimination of any form,” Berry concludes.

Of course, whether affirmative action and race-conscious hiring practices constitute “racial discrimination” is hardly an uncontroversial question; and Mr. Berry’s analysis essentially side-steps the nuanced question of whether and when the broad category of DEI practices overlap with what he characterizes bluntly as “affirmative action.”

Indeed, many practitioners who support DEI initiatives have long been calling for more holistic approaches. In a recent conversation with NPQ, Management Center CEO Jakada Imani argues forcefully that DEI can be practiced successfully without resorting to “quotas” or similarly preferential hiring practices, which may actually serve to limit the scope of DEI.

At the same time, even DEI optimists like Imani are among a growing chorus of voices from within the field warning that the recent Supreme Court decision is another sign that powerful conservative interests have placed a bullseye on diversity, equity and inclusion far beyond the realm of higher education.

This intervention in the ability of private employers to consider race in any aspect of workforce recruitment comes as many DEI supporters and practitioners voice concerns that corporate momentum behind such initiatives is already flagging significantly from a peak during 2020’s protests for racial justice.

“In many ways, and way too many instances, companies were having their first ever conversation about race and racism,” Shaun Harper, founder and executive director of the University of South Carolina Race and Equity Center, recently told WBUR’s Here and Now. “And it was a conversation that not many folks were all that interested in having. They were dragged into the conversation, so they were happy to have it end and, you know, return to business as usual.”

The recent court decision and the drumbeat to expand its reach into private employment may accelerate that calculated indifference.