The recent U.S. Supreme Court decision outlawing the use of racial classifications in college admissions poses the question of whether a racial classification can be used for any purpose, public or private, including employment decisions. It threatens to end diversity initiatives and to put employers in a damned-if-you-do-and-damned-if-you-don’t position.
In 1979, Kaiser Aluminum came to the Supreme Court with exactly that problem. Its Louisiana plant employed an overwhelmingly white labor force in a largely black labor market. To head off potential litigation, it agreed with its Steelworkers union to give a limited preference to black candidates when hiring new employees. A white candidate who was not hired sued. His claim was that the 1964 Civil Rights Act prohibited making an employment decision “because of “race.”
Supreme Court rejected his claim. The court acknowledged his claim’s logic, but, as one of its opinions put it, allowing his suit would defeat the purpose of the Civil Rights Act by putting the employer on a “tightrope.” Borrowing from an opinion written by Fifth Circuit Judge John Minor Wisdom, it reasoned that if the employer could not use race when faced with an “arguable” claim of past discrimination, then it faced legal liability no matter what it did. If it did nothing it could be sued by black applicants, but if it tried to correct the situation on its own it could be sued by white applicants. So the court allowed the program to go forward. Congress could have amended the statute to overturn that interpretation, but in the intervening 44 years, it has not done so.
Now the Supreme Court in a college admissions case has interpreted an almost identical statute which prohibits decisions made “because of” race in federally-funded programs as not allowing racial classifications for any reason. The colleges had histories of racial segregation. One of them, the University of North Carolina, had an 8% black enrollment in a state with a 22% black population. To promote diversity, its admissions process looked at race as one of many factors in a “holistic” review of applications.
But the Supreme Court said this violated the law. It decreed that diversity was no longer a goal that justified some use of race. The court even mocked the federally-prescribed census categories, such as “Black” or “Asian-American” on which the university had relied. It pointed out that these categories lumped people with very different origins together and appeared to leave some groups out. And the court seemed to find particular fault with a second university that, in its admission process, had calculated how its admissions decisions would affect the racial composition of the student body.
Because the language in the federal funding law is almost identical to the language in the law governing employment, the decision raises serious questions about the continued validity of the 1979 decision in Kaiser Aluminum case. If the Supreme Court thinks that achieving a racially diverse student body can never justify using race in admissions decisions, it is hard to see how the court today would be willing to allow employers to do just that.
For this reason, the decision puts not only employers but all federally-funded institutions on the “tightrope” the court rejected in 1979. It places all diversity programs in jeopardy. It creates a potential cause of action whenever race is mentioned in a hiring process. It does not matter what the race of the disappointed applicant is. Any time a person of one race is chosen rather than a person of another race, there will be a potential claim. And it does not help that federal law actually requires collection of the kind of racial category information that the Supreme Court mocked and said could not be used.
As the Supreme Court dissenters pointed out, racial diversity itself has value. That is true not only in universities, whose students may not have had much prior contact with students of other races, but also for businesses. Diversity helps businesses understand their customers and helps doctors understand their patients. It helps lawyers not only with understanding, but also with the ability to communicate with clients, jurors, and judges. It also increases public confidence in not only private institutions, but also in government.
No doubt universities and employers will attempt work-arounds. Universities may focus on students from low-income families. They may abandon the use of standardized testing to make it harder for rejected applicants with high scores to sue. The dissenting judges suggested some of this, but the court’s main opinion cautioned against reliance on the dissent. And neither of these work-arounds would help businesses balancing on the tightrope.
Luther Munford is a Northsider.
