The Supreme Court’s Decision in FAIR v. Harvard – Part 2

The decision applies to all manner of public and private entities, and their “Diversity, Equity, and Inclusion” (DEI) programs, not just colleges.

In the previous essay we looked at the majority opinion in the Supreme Court’s July, 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.  In this essay, we’ll examine how the decision applies to all manner of public and private entities, and their “Diversity, Equity, and Inclusion” (DEI) programs, not just colleges.

In his concurring opinion in the case, Justice Gorsuch explains how any race-based decision process that violates the Equal Protection Clause of the Constitution also violates Title VI, the landmark federal civil rights statute that applies to any entity that receives federal funds and prohibits discrimination based on race, color, religion, sex, and national origin.  And as Justice Thomas explains in his concurring opinion:

The Court has remarked that Title VI is coextensive with the Equal Protection Clause. See Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”).

As Justice Gorsuch writes in his concurring opinion:

Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin. It does not matter if the recipient can point to “some other … factor” that contributed to its decision to disfavor that individual. It does not matter if the recipient discriminates in order to advance some further benign “intention” or “motivation.” Nor does it matter if the recipient discriminates against an individual member of a protected class with the idea that doing so might “favor” the interests of that “class” as a whole or otherwise “promot[e] equality at the group level.” Title VI prohibits a recipient of federal funds from intentionally treating any individual worse even in part because of his race, color, or national origin and without regard to any other reason or motive the recipient might assert … If this exposition of Title VI sounds familiar, it should. Just next door, in Title VII, Congress made it “unlawful … for an employer … to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1) … [A]s Justice Stevens recognized years ago, “[b]oth Title VI and Title VII” codify a categorical rule of “individual equality, without regard to race.”

As Justice Gorsuch describes the processes at issue in the case:

Just as there is no question Harvard and UNC consider race in their admissions processes, there is no question both schools intentionally treat some applicants worse than others because of their race. Both schools frequently choose to award a “tip” or a “plus” to applicants from certain racial groups but not others. These tips or plusses are just what they sound like -- “factors that might tip an applicant into [an] admitted class.” And in a process where applicants compete for a limited pool of spots, “[a] tip for one race” necessarily works as “a penalty against other races.” As the trial court in the Harvard case put it: “Race conscious admissions will always penalize to some extent the groups that are not being advantaged by the process.” … All told, the district court made a number of findings about Harvard’s use of race-based tips … “At least 10% of Harvard’s admitted class … would most likely not be admitted in the absence of Harvard’s race-conscious admissions process.” … [A]nd “overall” the school’s race-based practices “resul[t] in fewer Asian American and white students being admitted.” … Messages among UNC [University of North Carolina] admissions officers included statements such as these: “[P]erfect 2400 SAT All 5 on AP one B in 11th [grade].” “Brown?!” “Heck no. Asian.” “Of course. Still impressive.”; “If it[’]s brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].”; “I just opened a brown girl who’s an 810 [SAT].”; “I’m going through this trouble because this is a bi-racial (black/white) male.”; “[S]tellar academics for a Native Amer[ican]/African Amer[ican] kid.”

Any DEI departments and other components of private or public entities, which are subject to the racial discrimination prohibitions of Title VII and Title VI, that employ similar processes and reasoning when looking to fill limited slots for any job or program are now practicing illegal racial discrimination.

As the Wall Street Journal editorializes:

Students for Fair Admissions v. Harvard … struck down affirmative action in college admissions and said racial discrimination should be ended in all circumstances. In his concurrence, Justice Neil Gorsuch emphasized that the practice is banned by the Equal Protection Clause of the Fourteenth Amendment and by Title VI of the 1964 Civil Rights Act and extends to private entities as well as government. That means companies, which are covered by Title VII, should adjust their hiring, promotion and retention policies to meet the same strictures the Justices applied to Title VI. The Court recognized that “outright racial balancing” is “patently unconstitutional” and accordingly, the AGs [state attorneys general] write [in a recent letter], the principles “apply equally to Title VII and other laws restricting race-based discrimination in employment and contracting.” That’s going to require adjustments in corporate America. DEI policies that now exist in nearly all major corporations have institutionalized discrimination as clearly as affirmative action in university admissions. 42 U.S.C. § 1981 bans discrimination in contracting but companies routinely sort contractors by race to meet diversity goals. The letter cites specific examples of corporate policies that “illustrate the pervasiveness and explicit nature of these racial preferences.” In 2020, it says, executives of 27 banks, tech companies and consulting firms “set an explicit racial hiring quota.” The AGs say companies including “Airbnb, Apple, Cisco, Facebook, Google, Intel, Lyft, Microsoft, Netflix, PayPal, Snapchat, TikTok, Uber and others” have also set policies that amount to discrimination on the basis of race. Microsoft set quotas for suppliers. In other examples, Adidas pledged to fill 30% of new positions with black and Latino workers. Target released a race and gender breakdown of its teams and pledged to increase hiring of black workers by 20%.

And as the Wall Street Journal states in another editorial:

If anything, judges have been more stringent about discrimination in the workplace. The Supreme Court’s decision in Grutter (2003) carved out a narrow exception for racial preferences in college admissions to promote the putative educational benefits of a diverse student body. The Justices have never upheld a similar rationale for corporate DEI. The Democratic AGs claim diversity is good for business. But even if true, this doesn’t fly as a legal defense ... Microsoft in 2020 pledged to increase its black-owned U.S. partners by 20% over three years, while doubling the number of black managers and senior leaders in the U.S. by 2025. This certainly looks like the sort of racial balancing that courts have ruled illegal. As with college admissions, hiring and promotion is a zero-sum game. Giving an advantage to an applicant of one race put others at a disadvantage.

As Michael Toth writes:

To avoid liability, companies should closely examine their DEI policies. Many companies publish demographic targets of their future workforce and leadership ranks. The manufacturing giant 3M announces on its website that its aim is to “double the representation of underrepresented groups from entry-level through management in our U.S. workforce.” In 2021, United Airlines launched a plan “to train 5,000 new pilots by 2030, at least half of them women and people of color.” McDonald’s has tied executive compensation to reaching specific percentages of women and minorities in senior positions.

And as Anthony LoCoco writes in the Wall Street Journal, the same goes for university faculty hiring:

Affirmative action in faculty hiring is the next frontier in Equal Protection Clause litigation. The University of Wisconsin-Madison, the flagship of the UW system, proudly operates the so-called Target of Opportunity Program (TOP). It allows academic departments to obtain waivers from the requirement to post job positions publicly and instead hire “diverse” candidates directly … Public records of internal TOP requests obtained by my group, the Institute for Reforming Government, show blatant, widespread and pernicious racial classification of faculty applicants that is difficult to reconcile with the Supreme Court’s recent decision … The university’s business school supported its proposal for TOP funding with a helpful chart showing faculty race by percentage with categories such as “Asian,” “White,” and “African American” and expressed a desire that faculty and student racial diversification proceed “at the same rate.” The school of medicine and public health argued that a targeted hire was necessary in part because “there are only 4.2% of dermatologists of Hispanic origin compared with 16.3% in the general American population.”

The principle enunciated by the Supreme Court in the Students for Fair Admissions case also extends to government contracting.  As Judge Glock has written in the Wall Street Journal:

The federal government has awarded about 10% of its available contracts to minorities, but President Biden announced that he wanted to increase that to 15% by 2025. New York City and state have set goals of 30% of contracts going to businesses owned by minorities or women. Mayor Eric Adams has demanded more no-bid contracts. The price of these programs is substantial. A 2009 study looked at highway costs after California voters banned consideration of race in government programs in the 1990s. It found that costs fell 5.6% relative to federally funded projects, in which racial contracting goals still applied. Other research shows these requirements increase cost overruns and delays. Minority contracts also encourage fraud. White contractors often use minority “front companies” to win contracts, then pay a small fee to the purported owner. Minority contractors often use bribes to keep getting special government solicitude. There is a steady drumbeat of indictments based on these programs.

The University of North Carolina, one of the entities sued in the Supreme Court case itself, has also recognized the wide implications of the decision.  As Steven McGuire writes in the Wall Street Journal:

When the Supreme Court struck down the University of North Carolina’s affirmative-action program in June, the trustees of its flagship Chapel Hill campus were quick to respond. Embracing the letter and spirit of the law, the board passed a nondiscrimination resolution in July that applies not only to admissions but to hiring and contracting as well. The resolution goes beyond race to prohibit discrimination based on “race, sex, color, ethnicity, or national origin, religion, sexual orientation, gender identity, age, disability, genetic information, or veteran status.”

The Supreme Court also decided a case called Muldrow v. City of St. Louis in 2024, which held that, in order to win a discrimination claim under federal law, one “does not have to show … that the harm incurred was significant. Or serious, or substantial, or any similar adjective.”  The opinion applied to all compensation, terms, conditions, and privileges of employment.  As Justice Brett Kavanaugh explained in his concurring opinion, the harm requirement is satisfied by any change in “money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”  The principle of the ruling applies to many corporate DEI programs.

As liberal Ted Rall writes in the Wall Street Journal, even many liberals won’t lament the ending of race-based preferences:

An Economist/YouGov survey found 59% of Americans, including 57% of independents, approve of the court’s decision against racial preferences in college admissions. Only 27% disapprove. Even 36% of Democrats approve of the ruling. Many of them are probably left-leaning white men like me, who never cared for race-based affirmative action. Like most white guys my age—I turn 60 next month—I have been told more than once that I was being passed up for a job, an award or a gig because my demographics were now disfavored. I shrugged and moved on; these slights neither destroyed my life nor turned me into a racist. But I came to see how affirmative action can sour race relations. My ancestors were poor European immigrants who arrived in the 19th and 20th centuries. What does slavery have to do with me? My senior year at Columbia University, I received no financial aid. I was 28, returning to finish my degree after six years, and the $36,000 I’d earned the year before disqualified me. My first job after graduating was as an office assistant at the admissions and financial-aid office. As I was struggling to pay my student loans, I processed an application from a black woman my age. I was told she had a multimillion-dollar trust fund and was awarded a full scholarship because the university needed her for diversity reasons. Later I worked as a math tutor at a private school in Manhattan. One day the director called me aside to inform me that I was being let go. I asked what I had done wrong. “Nothing, the kids love you,” he said. “You’re doing a great job. We want to hire a black tutor instead. Do you know anyone?” He smiled, showing no regret or sympathy. As a good liberal, I was expected to understand … Most handle it the way I have: by swallowing the unfairness and putting it behind them. Race-based affirmative action is gone in college admissions, and perhaps soon in the workplace as well. People like me won’t mourn it.

More detailed results of the Economist/YouGov poll are reprinted below:

According to that poll, the overwhelming majority of every demographic group agrees that colleges should be allowed to consider standardized test scores for admission.  And as Michael Barone writes:

[T]he results of an experiment in which high school students of the class of 2022 throughout Michigan were invited to take the SAT, and for which the results were disaggregated by, among other factors, self-declared race [show that] [o]verall, 69% of the test takers were classified as white, 5% Asian, 11% African American, and 8% Hispanic. These percentages are not far off the averages for the state of Michigan and for the United States as a whole. But when we look at those high schoolers who scored the highest, from 1400 to 1600, which include the top 95th percentile of the population, the picture is different: 69% white once again, but 29% Asian, 2% Hispanic, and 0% black. That last number may reflect that some black students simply didn’t work very hard on the test, just as the Columbia linguist John McWhorter confessed in the New York Times last week that in high school he didn’t bother “seeking the academic mountaintop” because, with racial quotas and preferences in place, his grades and test scores “wouldn’t affect my future.” So eliminating quotas may marginally increase blacks’ test scores. Even if you look at the larger tranche of students scoring from 1200 to 1600, scores achieved by just about all non-quota students in selective schools, that group still doesn’t “look like America”: 77% white, 13% Asian, 4% Hispanic, 2% black … Some people will find these numbers disturbing, and demand that government do something, somehow, to make every group identical. Others, including many familiar with the long run of American history, will recognize that differently defined groups will, because of some combination of nature and nurture, perform differently. The nation has benefited from excellence of various kinds, some more often found in one group, others in others. The National Basketball Association doesn’t much “look like America,” either, and neither have the creators and performers of great popular music going back far into the American past. The SAT tests were adopted and used by selective colleges and universities after the Second World War — a war whose American casualties were hugely reduced by the development of the atomic bomb, by the Manhattan Project, whose physicists, many Jewish and from Central Europe, didn’t much “look like America.”

In the next series of essays, we’ll explore the illogical and politically-motivated process that led to the creation of official U.S. government racial classifications (the boxes people check) in the first place.