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SCOTUS’s Affirmative Action Vice Signaling

A closeup photo of the US Supreme Court building, which reads, "Equal justice under law."
August 3, 2023

Since the U.S Supreme Court’s highly politicized decision to overturn affirmative action, I’ve been waiting to see how that decision might be stretched and twisted to attack other diversity-forward programming. I didn’t have to wait long for more than a dozen Republican attorneys general to send major corporations letters warning them to refrain from using racial preference in hiring and promotion decisions. The reasoning behind the affirmative action case to dismantle race-based recruiting programs in corporate America is that race and “color” shouldn’t be considered when evaluating an employment candidate. And yet, part of the lengthy “success” and brutality of chattel slavery in the U.S. — as well as the degradation of the land and identities of Indigenous peoples — was based on the insistence that our bodies, minds, and souls were inferior based on race or “color.”

So now, after reaping hundreds of years of benefits from race-based, legally backed and institutionalized oppression, race suddenly doesn’t matter?

As someone who has spent their career working with all levels of government, for-profit, and nonprofit organizations, as well as corporate entities supporting the areas of diversity, equity, and inclusion (DEI), it’s important to remember that DEI programs impact more than just race-related community engagement and support. Disability and veterans rights, caretaker status, and gender identity are all examples of categories of programming and initiatives that would be detrimentally impacted by these types of threats and lawsuits. We’re usually cautioned against slippery slope arguments, but trying to upend the Civil Rights Act of 1964 and all of the protected classes it affirms is serious. We would be remiss not to take this vice signaling seriously.

We have already seen a backslide in corporate DEI commitments over the last year and a half. The massive layoffs in the tech industry have disproportionately impacted historically underrepresented groups in tech, particularly people of color. The SCOTUS decision, at a minimum, can provide a basis for companies already looking to get out of those initial commitments to turn away (again) from investing in initiatives that diversify their workforces and, even more importantly, support and engage those communities. Many tech companies have recruitment and talent acquisition staff who are specifically focused on university recruiting. They search for the top talent, and many companies prioritize searching for the top, most racially and gender diverse talent, as well.

To be clear, companies are fully aware that identity-based quotas are illegal, so the insinuation that these exist in the first place is frustrating. This insinuation also contributes to the degradation of the talent who ultimately gets hired, as many will assume they were selected purely based on their identities and not their qualifications.

Companies could use the politicized decision from SCOTUS as a scapegoat to reduce staff, programming, and initiatives dedicated to diversifying their future workforces. In other words, more layoffs.

Companies that do so, however, would be cutting off their nose to spite their face, as it’s been proven time and time again that more diverse teams make better decisions and increase profitability.

Last year, companies such as Google, Uber, Meta, and Pinterest were among the 70 companies that submitted amicus briefs in support of Harvard’s affirmative action case. They recognize the diversity of one’s workforce is a competitive advantage, one that can yield tangible gains in areas such as profits and shareholder confidence. The companies that support affirmative action at the university level have been disappointed by the outcome in this case, but will double-down on their innovative efforts to recruit and retain a diverse workforce. They recognize their greatest investment is in their people and culture, and that their commitment to equity doesn’t end because of this decision.

Despite the attempts to erode the foundation of opportunity for all, the number of powerful business leaders committed to diversifying their workforce is growing.

These business leaders need to know that they don’t stand alone when it comes to championing true equity. For as quickly as those Republican attorneys general sent their groundless threats, Democratic attorneys generals have pledged to provide support and cover for those companies committed to diversity and inclusion.

We’ve seen the pendulum of civil rights swing back and forth in our lifetime. Institutionalized hate, enshrined in law, ripples through every single aspect of our lives, but there is power in numbers. We have the power to move the pendulum back towards the long arc of justice by linking arms, challenging unfettered intentions, protecting broken institutions, and rebuilding the more diverse, inclusive, and ultimately equitable path forward we want. Our future and livelihoods depend on it.

Shijuade Kadree's headshot. A person wearing a collared shirt and red lipstick smiles at the camera.

An alumna of Emory University, Shijuade Kadree graduated with a joint degree from the Schools of Law and Public Health. A former defense attorney with Brooklyn Defender Services, Shijuade has significant government relations, policy, strategic planning and stakeholder cultivation and engagement experience. She served as the Chief Advocacy Officer for The Lesbian, Gay, Bisexual & Transgender Community Center, as well as a legislative counsel for the New York City Council. She was the Director of DEI at Snap, Inc., supporting the global workforce in the areas of DEI goal-setting and implementation, learning and development, people and culture, and operationalizing DEI across the company for meaningful change.

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