Friday’s decision by the U.S. Supreme Court has consequences far beyond college admissions. While the ruling arose out of affirmative action admissions at Harvard and the University of North Carolina, the strict, new limitations laid down by the Court put countless racial preferences at risk in both the public and private sectors. In fact, the new limitations may be harder to circumvent in areas other than college admissions.
The Court said “eliminating racial discrimination means eliminating all of it.” The Constitution’s Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”— it is “universal in [its] application,” the court said. Any exceptions must survive a harsh two-step examination known as “strict scrutiny.”
What racial preferences are now suspect? Let’s take some examples in Illinois.
- Start with minority contract preferences such as those maintained by the City of Chicago. Those programs were at high risk of constitutional challenge even before Friday’s ruling, as explained here. Now, they are burnt toast if anybody wants to challenge it in court. Chicago’s program is so aggressive that the only ones not getting preferences are straight white males who aren’t veterans — only about 15% of the city’s population.
- Many elements of private sector DEI efforts are now likely to be challenged. Corporate employers, according to the Wall Street Journal, are saying the ruling “will lead to challenges to internal diversity, equity and inclusion initiatives, many of which were put in place or augmented over the past few years.” From a Bloomberg Law column, “The high court’s decision has set the stage for future challenges to the rationale behind workplace diversity initiatives and increased judicial scrutiny of those programs, attorneys said.” And from left-leaning Politico, “DEI on the ropes.” Concern about private sector DEI programs is not unanimous, however, with some legal opinions differing. Some DEI efforts such as aggressive minority recruiting are not at risk.
- Reparations for slavery also were already at risk of being challenged as discriminatory, but the state has a Reparations Commission at work to consider possible reparations programs. It should stop wasting its time. Evanston, Illinois has received national attention for pioneering a reparations program. Reparations programs arguably aren’t affirmative action and a different legal analysis may be required but, clearly, any program based strictly on race such as reparations is now likely doomed.
- Racial preferences and “equity” have been inserted into everything from tree plantings to public transportation to energy production under the administrations of Lori Lightfoot as Chicago mayor and JB Pritzker as Illinois governor. That’s particularly true of CEJA, Illinois’ clean energy bill targeting net zero emissions. It’s brimming with racial preferences of all sorts described here in detail.
Another approach that could be used for college admissions and hiring would be to shift away from automatic assumptions about race to looking specifically at whether any particular individual was disadvantaged. That would still pick up more racial minorities than others, but would equally help others who’ve faced challenges no less serious. Most of us probably follow that in our daily lives anyway — we give extra points to any underdogs born on the wrong side of the tracks or subjected to unusual hardship. That approach, if implemented honestly, would still be permissible under the Court’s new ruling.
That’s the approach I personally would favor that was endorsed by Barack Obama — before he was president, of course. Today, he and Michelle have joined the progressive chorus slamming the new ruling, which is a subject for another day. Barack had an entirely different story before he became president.
All those alternatives would be difficult or perhaps impossible to apply, however, to preserve racial preferences in other contexts, like those listed above.
It’s a new day for racial preferences of any kind.