FROLITICKS

It all started in June 2023 when the U.S. Supreme Court ruled that race-conscious college admissions programs at Harvard and the University of North Carolina are unconstitutional, causing colleges and universities to shift to race-neutral policies.  This decision upended decades of legal precedent when it came to affirmative action policies among post-secondary institutions.  Since then, several lawsuits have been launched representing the latest front in a conservative campaign to roll back affirmative action programs in government and diversity, equity and inclusion (DEI) initiatives in the corporate world.  Affirmative action programs are ripe targets, legal experts say, in part because nearly every state and locality has one or more that benefit women, minorities and other underrepresented groups.  Conservative activists have filed dozens of complaints against Fortune 500 companies alleging discrimination against White people.  Long-standing federal programs created to benefit minority-owned businesses now find themselves on shaky ground.  In the past, courts typically have upheld government affirmative action programs on the grounds that society has an interest in remedying past and ongoing discrimination.  All that is starting to change, largely because of recent court decisions.

One of the programs under attack is the federal Small Business Administration’s 8(a) program for minority government contractors.  The SBA had to overhaul its application process last year after a court ruled that the SBA could not automatically assume that Black, Hispanic, Asian or Native American business owners qualify as socially disadvantaged – a prior key requirement.  The Minority Business Development Agency was similarly blocked from using racial categories to determine applicant eligibility.

The Pacific Legal Foundation, a conservative public interest law firm representing many of the plaintiffs, noted that the vast majority of race-based government programs are operated by states and cities.  Fifteen states have race- and sex-based mandates that apply to most public boards, according to a survey released in 2023 by the Foundation.  In 14 states, the survey found similar requirements for 63 professional licensing boards responsible for social work, dentistry, pharmacy and medical examination.  All told, the Foundation reported that at least 25 states have such requirements in some form.  Generally, it is argued that preference for minority applicants allegedly violates the 14th Amendment right to receive equal treatment under the law.

Historically, African Americans were largely locked out of the skilled workforce.  A 1960 report by the Department of Labor found that Black workers make 60 percent less on average than Whites.  Meanwhile, the modern civil rights movement began challenging segregation in the South, and the landmark Brown v. Board of Education case led to the desegregation of public schools.  Responding to growing demands for racial equality, President John F. Kennedy signed an executive order in 1961 requiring federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”  This was the birth of affirmative action initiatives in the U.S.

Many American businesses were confused about how to comply with the subsequent new laws, including President Lyndon B. Johnson’s Civil Rights Act of 1964, which encouraged businesses to diversify their workforces while prohibiting discrimination.  Critics argued that they would result in preferential treatment of Black Americans, claims that have persisted for decades.  Affirmative programs appear to have had a positive effect.  According to one 1973 study, the average income in 1969 of “non-White” young, college-educated men was 98 percent of the average of U.S. workers, up from just 80 percent a decade earlier.  Such programs are seen as attributing to helping to reduce traditional discriminatory patterns in the labor market.  In addition, the wage gains coincide with an explosion in the number of Black people enrolling in colleges, particularly in elite colleges — 417,000 in 1970, up 83 percent from a decade earlier. 

There is little doubt that affirmative action programs, no matter how effective they are, will continue to be under attack by conservative groups, whether in the courts and in local and state governments.