The Impact of the Affirmative Action Ruling on Marketing Executives
Ripple effects
I over-estimated my ability to produce content the last couple of weeks. But I am committing to keep to some sort of schedule of an average of one free post and one paid post per week. Last week did not have a paid post, but I will make it up to you in the next few weeks (maybe even this week). I may need to do the same thing next week (no premium post, made up with two the following week) as I am flying from a small island in Greece, to San Fransisco, Miami, and then back to Europe. Wish me luck. Onto today’s post.
Last week the Supreme Court dropped two substantial rulings that will impact business executives in the coming years, both split 6-3:
Affirmative Action: A ruling against Harvard and the University of North Carolina that their race-related admissions policies were illegal
Free Speech vs Gay Rights: Ruled that businesses were not obligated to serve protected class customers in specific expressions of content
Today’s essay focuses on the affirmative action decision. I will cover the free speech implications in tomorrow’s essay.
In deciding the affirmative action case the court could have made a very targeted ruling. They chose not to. John Roberts (the author of the ruling) has written a very expensive degree. Some quotes from the ruling (and a few from the concurrences):
Can racial discrimination apply to whites and Asians:
"Eliminating racial discrimination means eliminating all of it… it is universal in its application. For the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color”
In responding to the disent: “In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is inherently unequal… It depends, says the dissent”
On precedent:
The Grutter ruling allowed for race-based admissions programs, but “at some point they must end”
Grutter’s ruling stated, “…expected that 25 years from now, the use of racial preferences will no longer be necessary”. Harvard used this to argue that they had 5 more years (Gutter was decided 20-years ago). The new ruling: “That expectation was oversold. Neither Harvard nor UNC believes that race-based admissions will in fact be unnecessary in five years, and both universities thus expect to continue using race as a criterion well beyond the time limit that Grutter suggested”
On the value of diversity as a reason for racial bias:
“Although [diversity is] a commendable goal, [it] is not sufficiently coherent for the purposes of strict scrutiny. At the outset it is unclear how courts are supposed to measure any of these goals.”
“Even if these goals could somehow be measured… how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease?"
“…the question in this context is is not one of no diversity or of some: it is a question of degree. How many fewer leaders Harvard would create without some racial preference, or how much poorer the education at Harvard would be, are inquiries no court could resolve”
On the nonsensical categorizations by race: “[Harvard] would apparently prefer a class with 15% of students from Mexico over a class with 10% students from several Latin American countries, simply because the former contains more Hispanic students than the latter”.
“We have long held that universities may not operate their admissions programs on the belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue”
(From Thomas’s concurrence): “in the year's since Grutter, I have sought to understand exactly how racial diversity yields educational benefits. With nearly 50 years to develop their arguments, neither Harvard nor UNC— two of the foremost research institutions in the world — nor any of their amici explain the critical link” He goes on to say the ONLY time race should be considered is to prevent violence and anarchy (i.e., separating prisoners to prevent riots)
Knocking down the university’s defenses:
“The universities main response to these criticism is essentially, “trust us”… because universities are “owed deference” when using race to benefit some applicants but not others… Universities may define their missions as they see fit. The Constitution defines ours.”
Harvard argues they do not discriminate because race is not a negative for anyone, but rather a “plus” for some. The court: “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
Clarifying that Universities should not try to “get around the ruling”:
“despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion). What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows and the prohibition against racial discrimination is leveled at the thing not the name. A benefit to a student whose overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or the benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”
The ruling itself is based on this specific case and university admissions, but Gorsuch in his concurrence hints at where he sees this going:
“Today, the Court holds that the Equal Protection Clause of the Fourtteth Amendment does not tolerate [the practice of using race in the university selection process]. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either…
To safeguard the civil rights of all Americans, Congress chose a simple and profound rule. One holding that a recipient of federal funds may never discriminate based on race, color, or national origin — period.”
The universities wasted no time in letting their students, faculty and alumni know that they would do all they could to get around the ruling. Many people I have spoken gave the example of the California University system where Affirmative Action banned, but where racial preferences seem to have changed little.
This time may be different.
The ruling was very clear that if the universities have the intention to shift class demographics by race through ANY techniques, they will be breaking the law. Anyone who has worked in a large organization knows how hard it would be to coordinate activities of any kind. Now try to do that while not being explicit about what it is you are trying to do. When Harvard (or any university’s) incoming class of 2028 starts in September 2025 and has similar demographics to the class of 2027, I expect thousands of lawyers will be building up their class action lawsuits for all the white and Asian candidates rejected. Then the discover process starts. And there will always be emails. Universities will also need to worry about whistle-blowers who were told verbally what needed to be done.
What does the ruling mean outside of academia?
I see a few implications:
It seems clear that federally funded organizations under Title VI are subject to the ruling (or will be shortly). It means that those organizations will not be able to give “bonus points” to minority applicants or employees
I THINK it means that government policies to reward minority-owned businesses may be illegal. At General Assembly we partnered with an African-American-owned company any time we pitched to the government. It seems that this will no longer be necessary, and non-minority owned companies that do not get contracts may have the ability to sue. It also seems like this should apply to “buy American” regulations.
Companies that are not subject to Title VI seem safe for now. Google and Microsoft can still discriminate in their hiring of developers (I think). But with the breadth of the decision I would not be confident this will continue indefinitely. There may be battles internally in large orgs between those who want more DEI and those who want to dismantle it. The dismantlers have now been given a rational for why dismantling could future-proof the company
“Diversity” has been used for years as a code-word for racial diversity (much has been written about how it rarely leads to political opinion diversity). That line of defense: “We are doing this for the purposes of diversity” seems to have been (legally) eliminated with this decision. I expect DEI offices with need to find a way to, at the very least, remove the “D” from their brand.
For more check back here tomorrow. I also recommend these two short essays on the implications (one from each side of the debate)P
Richard Hanania, “Why SFFA v Harvard Matters” (Generally in favor of the ruling)
…this case isn’t just about universities. One of the more interesting things about the decision is that we now know that Gorsuch has a fundamentalist reading of the Civil Rights Act. In his concurrence, he argued that under Title VI, you basically can’t use race under any circumstances. This is consistent with his opinion in Bostock, which expanded “trans rights” based on the idea that tolerating any behavior in one sex but not the other, like wearing a dress, was against the law. His view is that Title VI, which applies to programs and institutions that receive federal funding, and Title VII, which addresses employment, both impose the exact same standard of non-discrimination that is virtually absolute. Thus, there is no way one can imagine Gorsuch not being in favor of invalidating things like racial set asides in contracting and soft quotas in hiring.
Jessia Lessin (The Information) “What Supreme Court Ruling Means for Tech Hiring” (generally against the implications of the ruling)
One of the reasons the justices shut down affirmative action was because they said they couldn’t assess the school’s reasoning about the benefits. If they truly believe that, it’s not hard to see them applying the same logic to the corporate world if given the opportunity.
Keep it simple,
Edward