Conservative High Court Downs Affirmative Action

Shortly after the conservative-led U.S. Supreme Court delivered its ground-shaking 6-3 decision last week striking down racial affirmative action in college admissions policies at UNC-Chapel Hill and other predominately-White institutions across the nation, many African Americans on social media chimed in, “No problem. We’ll just send more of our kids to HBCUs (historically Black colleges and universities”

Just one problem, that history-changing ruling isn’t going to stop with just college admissions. When those Black students graduate from HBCUs, they are going to need to find jobs in the public and private sector.

Last week’s affirmative action decision was narrowly tailored for academic admissions, so it can’t be used directly to govern employment, contractual or program situations.

But Forbes Magazine warned last week that “…the decision will have a “chilling effect” on businesses that will grow concerned about lawsuits against diverse hiring practices and initiatives to improve diversity.”

Cedric Powell, a law professor at Howard University, told Newsweek Magazine, “There’ll be implications in employment law. There’ll be implications in other areas of education. There’ll just be widespread implications.”

“One of the things the court does is plant little time bombs that will explode later on,” Powell continued. “Today, we’re ostensibly talking about education. But there is a spillover effect, for example, in government contract set-asides for minority businesses [because] they exclude Whites who want to participate. It’s an example of reverse discrimination. So we need to review and overturn all public contracts. Same thing with employment. A White plaintiff says, ‘Well, yeah, I didn’t get the job. You’re considering race and that’s reverse discrimination.’ I see a whole onslaught of more emboldened plaintiffs articulating reverse discrimination claims.”

Associate Justice Ketanji Brown Jackson, one of three liberal Supreme Court justices who defended affirmative action, confronted lawyers for opponents during arguments last October, saying, “If the court determines that any benefit or preference based on race is unconstitutional, the impact would radiate far beyond elite colleges … the court could gut a half century of programs and laws designed to help groups that have historically faced racial discrimination in the U.S. that leveled the playing field, giving them greater access to education that might improve job opportunities and economic equality. At risk beyond preferences in college admissions: government programs that require a certain percentage of contracts go to minority-owned companies; scholarships and financial aid based on race or ethnicity; hiring practices at private companies aimed at recruiting underrepresented groups; race-specific outreach by social services agencies. Even hate crime laws could be in peril.”

According to the Milwaukee Sentinel Journal, the day of the U.S. Supreme Court decision, “Assembly Speaker Robin Vos indicated Republicans will move to repeal state laws and programs based on race – including a state run scholarship program for students of color.”

What the Republican legislature in Milwaukee is just starting to do, GOP lawmakers in North Carolina began doing two years ago.

In 2021, N.C. Senate leader Phil Berger introduced Senate Bill 729 – the Public Non-discrimination Amendment to the North Carolina Constitution to prohibit consideration of race, sex, color, ethnicity or national origin in public employment, public contracting and public education.

The bill was referred to committee, but never made it out to go for a final vote.

N.C. Republicans could try again to pass it, and place the measure on a public referendum.

A bipartisan bill (HB 833) to expand teaching opportunities for “male minority” teachers using state funds in North Carolina, could now be on the chopping block. Republican lawmakers have already outlawed the teaching of critical race theory (HB 324), only to have Gov. Roy Cooper veto the law. Now that they have a super-majority in both legislative chambers, they can try again and override.

And last February, the Republican-led UNC Board of Governors voted to eliminate all diversity, equity and inclusion statements and compelled speech from admission, hiring, promotion and tenure in the UNC System.

Alvin Tillery Jr., a political science professor at Northwestern and director of its Center for the Study of Diversity and Democracy, told Newsweek, “The same people, when they win this, they’ll start suing companies for their supplier diversity programs, suing cities for programs that help minority businesses, suing to remove everything that acknowledges and seeks to help people of color.”

Yahoo Finance reports, “Universities are likely to become less diverse over time, directly affecting the talent pool available to American businesses. Experts also say that the court could be receptive in the future to similar cases targeting race-based initiatives at private companies, with no shortage of cases attempting to erode race-based candidate considerations in corporate America.”

Associate Justice Sonia Sotomayer, another of the High Court’s dissenting liberals, made clear her dissatisfaction with last week’s decision, writing in her opinion, “The Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter,” concluding her dissent by quoting civil rights leader Dr. Martin Luther King Jr.

“Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress.”