The decision by the Supreme Court last month that ruled against affirmative action in higher education could ultimately dismantle diversity, equity, and inclusion (DEI) programs in corporations across America, say experts.
In a 6-3 decision, the Supreme Court said that universities and colleges could not include race considerations in their admissions process, upending a legal precedent that allowed it and what’s known as affirmative action.
The decision has sparked fierce debate on how and if it could influence other sectors of public life, including the promotion and hiring practices of corporations and companies.
According to experts, the decision could mean corporations could be held liable for the “wokeism” in their DEI policies and programs.
Director of Consumers’ Research Will Hild says the case might expose companies to continue to prioritize race in staffing decisions, ultimately violating the Civil Rights Act.
“That fig leaf has now gone. There’s no question that affirmative action, racially based hiring and promotion schemes violate the Civil Rights Act,” said Hild.
“And you no longer have this even potential loophole of the affirmative action jurisprudence. I think… you’re going to see a lot of companies, their legal compliance officers, are going to review what their DEI departments are doing and probably tell them to cut it out,” continued Hild.
“I think you’ll see a lot of companies who might even get rid of their DEI departments because the philosophy around the DEI is almost directly in contradiction with law, to begin with,” he added.
Corporations have long relied on the law to justify certain DEI practices
Hild maintains that while most affirmative action legal precedent has involved higher education, corporations have long relied on that jurisprudence to justify certain DEI practices.
“This is going to put wind in the sails of groups like mine and others who are focused on getting the wokeism out of corporate America. They no longer even have this fig leaf of this pre-Harvard case jurisprudence,” said Hild.
Hild said that during 2022-2023, he observed companies engaging in “hiring promotion schemes” that, in some instances, were “explicitly racially based.” After the ruling from the high court, those companies could be exposed to litigation.
“And they were already, I think, playing with fire there and inviting some pretty serious litigation. Now, there really isn’t even a legal argument to be made that they can engage in this kind of behavior,” said Hild. “If they’re doing it explicitly, it’s going to be a very fast and negative case for them.”
“And if they’re doing it quietly, I think they’re playing with fire. If it comes out in emails or communications that they may not have said it on the job application, but they were discriminating quietly within the company, they’re not going to have any legal defense at this point that their goals were noble, and so it’s OK. It’s just flat-out illegal now,” said Hild.
General counsel for America First Legal, Gene Hamilton, said the Supreme Court decision signals the “writing on the wall” for corporations.
“If I was advising major corporations and law schools and medical schools and everything else, I would tell them to immediately get out of the business of racial preferences and out of the business of racial quotas,” said Hamilton.
“Because what we see is the writing on the wall. We see the fact that there is no tolerance amongst the majority of the Supreme Court for these types of divisive programs,” he continued. “Tread carefully. There is a lot of liability for employers in this space.”
Justice Clarence Thomas said the court’s decision “sees the universities’ admissions policies for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”
“Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face but how they choose to confront them. And their race is not to blame for everything — good or bad — that happens in their lives,” said Thomas. “A contrary, myopic worldview based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.”