Affirmative action ruling unlikely to end at universities

The recent United States Supreme Court decision that essentially ended affirmative action at universities will change the face of higher education and reduce enrichment opportunities for all students. But there will also be significant repercussions for industry and society as a whole.

Immediately, we will start to find that it is difficult to achieve racial diversity in our companies and organisations as the numbers of university educated people of colour will drop and the pool of talent from which to draw tomorrow’s leaders and workers will shrink significantly.

In August of last year, a group of more than 60 companies – including American Airlines, Apple, Dell, General Motors, Google, Salesforce, Starbucks and Walgreens/Boots, to name just a few – filed an amicus brief with the Supreme Court in support of affirmative action, in which they were unequivocal about the value of diversity, saying: “Not only do individuals of all racial backgrounds learn to understand dierent perspectives, but diversity in groups increases thoroughness, accuracy and motivation to avoid internal biases. Importantly, a diverse student body is needed to achieve these benefits.”

The domino eect of this momentous Supreme Court decision doesn’t end at the universities, either. Already conservatives are taking aim at corporate diversity programmes. “While today’s decision is an important step, racial bias of all types must be eliminated from all institutions in our society, whether they go by the name of affirmative action or fall under the newest leftist moniker of ‘diversity, equity and inclusion’ (DEI),” Matt Schlapp, chair of the Conservative Political Action Coalition, said in a statement.

USA Today reported that Scott Shepard, director of the National Center for Public Policy Research’s Free Enterprise Project, made this veiled threat: “The Supreme Court ruling is a warning to corporate elites to stop foisting their liberal agenda on the nation.”

The Financial Times in London quoted a similar warning from a conservative advocacy group. “The days of racial discrimination in hiring, especially through these DEI programmes, are numbered,” said Will Hild, executive director of Consumers Research. “I’d expect we’re going to see a pretty large wave of litigation.”

There it is, the ‘scary’ word guaranteed to make corporations stop in their tracks: litigation. You might as well have put a moratorium on all DEI eorts as everyone goes o to consult their lawyers about what they can and can’t do.

An attack on diversity of all kinds

Of course, targeting DEI programmes will ultimately aect not only people of colour but also women. In the last few years, we have had success in using targets to encourage companies to put women on their boards; currently over 40% of directors on FTSE 350 boards are women.

Additionally, public attention to gender balance has increased the number of women in executive leadership in those same companies. Government-mandated gender pay gap reporting further spotlights discrepancies and helps to accelerate eorts to achieve equality.

But these are all programmes that fall broadly under ‘DEI’. Will this trend continue if companies start to dismantle their internal initiatives for fear of being seen as discriminatory?

No doubt some will use the Supreme Court’s ruling as an excuse to forgo any attempt at creating diversity, but even companies who know the value of ‘dierence’ in their workforce and want to continue to achieve the benefits of diversity may be reluctant to continue the mentoring, sponsoring and training programmes targeted to specific demographics.

Civil rights movement

Affirmative action has its roots in the civil rights movement in the United States. Initially, it encouraged employers to hire marginalised people, as Lyndon Johnson’s 1966 order told contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, colour, religion, sex, or national origin”.

Later, Nixon used the term as a directive to government agencies to “… promote the full realisation of equal employment opportunity through a continuing affirmative programme”.

When affirmative action was introduced into the university admission process, it didn’t take long for “reverse discrimination” charges to be levelled in the fallacious belief that a quota system for women and people of colour would take opportunities away from white men.

The Supreme Court duly outlawed quotas in 1978, at which time universities shifted the focus of affirmative action away from advocating social justice for individuals to seeking the benefits of diversity to the entire university.

A larger social experiment was also in play during that time, one that had the potential to reshape an entire society. The students who found their way to university through affirmative action were not just given a pass on any educational deficiencies and thrown into the mix to compete with students who were far better prepared. Instead, universities screened and evaluated each student, recommending remedial or levelling classes to make up for what they missed by coming from a school with less rigorous standards (or more likely lesser resources).

When they were brought up to an equal level with their more privileged classmates, they then took the same courses and were judged on the same standards applied to others. Today we would call this equity: giving the extra help needed to reduce the disadvantages that were inherently unfair.

Re-shaping whole communities
The farreaching eects of such equity meant that entire communities could be reshaped; families who had never had a university graduate now found that they had one – or two or three. That educated people tend to marry educated people is a known sociological fact, resulting in educated families who value education for their children, thus continuing the cycle of greater educational attainment. Over time, a more educated – and evidentially more prosperous – populace results.

In addition, the university graduates could become role models for others in their communities, with more and more disadvantaged youngsters seeing possibilities for their own future, possibilities that could lift them out of poverty and make them more productive and prosperous citizens. Again, there is clearly a societal benefit.

None of this is likely to happen now. Not everyone has the same advantages and privileges in life; therefore, equal opportunities are not inherently equal. Affirmative action is simply equity, and without equity, there can be no equality.

The Supreme Court decision, with its carveout to make an exception for affirmative action in military academies, invoked the ire of Ketanji Brown Jackson, the newest member of the Court. “Deeming race irrelevant in law does not make it so in life,” she wrote in her dissent.

Referring to the carveout, she further excoriated her colleagues of the majority by saying it appeared from this decision that “racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom.”

It’s hard to find any winners from this court decision. But the ingenuity and resilience of the people who believe in the transformative power of diversity is encouraging; already we have seen some corporate DEI officers changing their titles to “chief transformation officer”.

Perhaps that is a sign that they will continue to work to establish a fairer playing field for everyone, even if their eorts are neither governmentmandated nor applauded by the conservative circles of the privileged few.

Tamara Box is managing partner, Europe and Middle East, for global law firm Reed Smith. She is also an advisory board member at the Inclusion Initiative at the London School of Economics. This blog first appeared at LSE Business Review and was subsequently published on the LSE Blog. The post gives the views of its authors, not the position of USAPP – American Politics and Policy – nor of the London School of Economics.