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06.30.2023 0

If racial preferences in college admissions are violate 14th Amendment’s equal protection, then so do ESG’s ‘diversity, equity and inclusion’ racial and gender hiring quotas

By Robert Romano

It’s a simple ruling: “Eliminating racial discrimination means eliminating all of it.”

On June 29, the Supreme Court affirmed Title VI of the Civil Rights Act, 42 U.S. Code § 2000d’s prohibition on racial discrimination in federally funded programs, including higher education, at both public and private universities, in the Students for Fair Admissions v. Harvard decision.

The law itself is clear: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

And that’s exactly what Harvard College and the University of North Carolina (UNC) — and colleges and universities across the country — have been doing for decades by offering racial preferences in school admissions to hit quotas. The formulas used in these cases discriminated on their face against white and Asian students.

Nobody disputed that Harvard and UNC were receiving federal funding. Nobody challenged that Title VI applied to the funding. Nobody contested that it disadvantaged certain students on the basis of race.

And nobody disputed Congress’ authority to enact Title VI under a clear mandate in the 14th Amendment in Section 1 that “No state… deny to any person within its jurisdiction the equal protection of the laws” and Section 5 that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” and that Article I of the Constitution grants Congress the power of the purse to determine the terms and conditions for receipt of federal funds.

With such clear provisions of law, how could the court rule any other way? In Chief Justice John Roberts’ words, it was only through judicial “improvisation” that an altogether different interpretation of the 14th Amendment included precedents that have now been struck down, including 1978’s California v. Bakke, which had held that federally funded institutions could discriminate on the basis of race if the intent was to advantage groups that had been historically discriminated against. No more.

And so, now the court is returning to an original understanding of the provisions of the 14th Amendment as a measure of equal protection — and with equal meaning equal. No discrimination on any side, restoring what was the law of the land all along and in so doing, have provided the means to countering other discriminatory practices that have come out this era of “judicial improvisation.”

Undoubtedly that will come to include radical corporations’ discriminatory and racist hiring practices, which, just like college admissions, seek to redress historical racial injustices.

In short, if racial preferences in college admissions are unconstitutional under 14th Amendment equal protection, then so are those by corporations today via their “diversity, equity and inclusion” racial and gender hiring quotas, one of the cornerstones of the Environmental, Social and Governance (ESG) investment model that seeks not profit, per se, but through ownership of companies to impose certain social agendas.

Today, the question of reverse discrimination posed by ESG’s Diversity & Inclusion corporate policies might be decided differently by today’s Supreme Court more than 40 years later. It would be up to those fired or cancelled to make the case they were discriminated against on the basis of race and/or sex.

As it is, corporate America’s racial and gender diversity preferences in favor of women and minorities, including at America’s biggest entertainment companies absolutely “discriminate[s] … because of such individual’s race, color, religion, sex, or national origin.”

Just look at media and the entertainment industry.

AT&T first included D&I objectives in Sept. 2018 after its then-merger with Time Warner (it has since divested WarnerMedia to Discovery) was completed. In its 2018 report, AT&T’s then-CEO Randall Stephenson announced the company’s new Diversity & Inclusion Policy, “I am proud of our commitment to a diverse and inclusive workforce. WarnerMedia’s new Diversity & Inclusion Policy, announced in September, is a pioneering media industry commitment to give more opportunities to women, people of color and individuals from other underrepresented groups – both in front of and behind the camera.”

As for the other companies, Disney, which owns Marvel Comics, states in its 2020 report, “Diversity and inclusion (D&I). Our [Diversity & Inclusion] D&I objectives are to build teams that reflect the life experiences of our audiences, while employing and supporting a diverse array of voices in our creative and production content. Established six pillars that serve as the foundation for our D&I commitments – transparency, accountability, representation, content, community, and culture. Created a pipeline of next-generation creative executives from underrepresented backgrounds through programs such as the Executive Incubator, Creative Talent Development and Inclusion (CTDI), and the Disney Launchpad: Shorts Incubator. Championed targeted development programs for underrepresented talent. Hosted a series of culture-changing, innovation and learning opportunities to spark dialogue among employees, leaders, Disney talent and external experts. Sponsored over 70 employee-led Business Employee Resource Groups (BERGs) that represent and support the diverse communities that make up our workforce. The BERGs facilitate networking and connections with peers, outreach and mentoring, leadership and skill development and cross-cultural business.”

Mattel, which owns properties like He-Man, in its 2020 report stated its Diversity & Inclusion commitments: “As a purpose-driven company, we have raised the bar on our commitment to corporate citizenship… Diversity, Equality and Inclusion (“DEI”) is another key priority for Mattel, and we are building on our long heritage in this important area by continuing to advance our DEI efforts across the Company and representing diversity and inclusivity in our products.”

Discovery, which will control WarnerMedia including DC Comics in 2022, in its 2020 report announced its own Diversity & Inclusion objectives: “Our DE&I objective is to foster a culture of equity, inclusion, and mutual respect. In 2020 we emphasized our DE&I focus through Mosaic – our Diversity, Equity and Inclusion activation. Mosaic covers a range of initiatives, including: Unconscious Bias, Respect & Integrity; Allyship; Recruitment and Career Development; Content Diversity; Supplier Diversity; and Social Impact. We sponsor over 30 chapters of Employee Resource Groups (“ERGs”) across the globe with more than 2,500 members. ERGs draw upon their collection of unique experiences to help drive our mission of fostering a diverse and inclusive environment and provide important insights to our diversity, equity and inclusion initiatives… We have a department dedicated to social good that builds and oversees consumer and employee-facing initiatives and campaigns. We leverage our platforms, resources, and employee base to make an impact in our communities and with our key nonprofit partners. We have corporate partnerships aimed at addressing childhood hunger, racial injustice and wildlife preservation.”

And Hasbro in its 2020 report announced explicit racial and gender hiring quotas: “Diversity & Inclusion Goals: Increase the percentage of women in director and above roles globally to 50% by 2025. Expand ethnically and racially diverse employee representation in the U.S. to 25% by 2025. Include a 50% diverse slate of candidates for all open U.S. positions where there is underrepresentation.”

From a personnel point of view, when big mergers happen alongside the institution of Diversity & Inclusion policies, while, male, conservative Republicans are purged if they dare speak up. Or maybe the work just dries up.

And it’s not isolated to just the entertainment industry. It’s across the board. A March 2021 ESG Report by Pfizer set 2025 “opportunity parity goals” including “increasing our minority representation from 19% to 32% and doubling the underrepresented population of African Americans/Blacks and Hispanics/Latinos.” Those are racial hiring quotas.

But Diversity & Inclusion goals go even further than just violating Title VII of the Civil Rights Act.

It impacts social media, too. For example, prior to the purchase of Twitter by Elon Musk, and flush with billions of dollars of capital from ESG investing, social media platforms like Twitter have pursued aggressive Diversity & Inclusion and other politically charged objectives, including censorship.

Diversity hiring quotas like these appear to squarely run afoul of the 1964 Civil Rights Act’s prohibition on employment discrimination on the basis of race or sex: “It shall be an unlawful employment practice for an employer… to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or … to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

However, thanks to the 1979 ruling by the Supreme Court ruling Steelworkers v. Weber which ruled that employment policies that include racial preferences on the basis of race and sex in favor of women and minorities, which plaintiffs argued was reverse discrimination, were not a violation of the Civil Rights Act, in effect legalizing employment discrimination against whites and males. This was a sharp departure from more racially neutral interpretations of the Civil Rights Act by federal courts that preceded the decision.

Then Associate Justice William Rehnquist, who would go on to become the Court’s 16th Chief Justice in 1986, in his dissenting opinion, compared the Court’s rewriting of the Civil Rights Act to the totalitarian regime portrayed in George Orwell’s 1984, writing that law was written plainly, “Taken in its normal meaning, and as understood by all Members of Congress who spoke to the issue during the legislative debates, this language prohibits a covered employer from considering race when making an employment decision, whether the race be black or white.”

Rehnquist blasted the majority of the court, adding, “the Court behaves much like the Orwellian speaker earlier described, as if it had been handed a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as it was in our prior decisions. … Now we are told that the legislative history of Title VII shows that employers are free to discriminate on the basis of race: an employer may, in the Court’s words, ‘trammel the interests of the white employees’ in favor of black employees in order to eliminate ‘racial imbalance.’… Our earlier interpretations of Title VII, like the banners and posters decorating the square in Oceania, were all wrong.”

Rehnquist in 1979’s Steelworkers v. Weber dissented in a ruling on Title VII that allowed for race-based hiring even though the law explicitly prohibited it, calling it “Orwellian” and quoting 1984. More than 40 years later and now the edifice of the ivory tower is crashing down.

The majority of the current Supreme Court are all considered acolytes of Rehnquist. All were regarded as constitutionalists, originalists and textualists when they were nominated by conservative presidents George H.W. Bush, George W. Bush and Donald Trump, the latter of whom just secured an historic 6 to 3 majority on the nation’s highest court with Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, who all ruled to restore the 14th Amendment’s equal protection rule.

The June 29 decision was on college admissions. And so any case potentially overturning Steelworkers v. Weber would still need to work its way through the courts, and surely, ESG-owned companies imposing “diversity, equity and inclusion” hiring quotas provide the ripest target. The ruling here on straight 14th Amendment grounds, coupled with Congress’ power of the purse, assuredly will soon spell the end of race and gender discrimination by employers explicitly prohibited by Title VII.

Again, Sec. 5 of 14th Amendment states: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” and Article I, Section 8 grants Congress the power to regulate interstate commerce. Which is precisely what it did via Title VII. If there had been a split or adverse ruling on college admissions, I’d be more skeptical the court might go in this direction but this is as clear a signal as any to which way they’re going.

Per the ruling, “Eliminating racial discrimination means eliminating all of it.” So, let’s end discrimination, not just in college admissions, but also hiring, banking and commerce. What we’re learning with the court’s ruling today is that discriminatory practices can best be ended when there is an incentive that a consenting party will not be discriminated against as well on the same or other bases. The Bakke decision was perpetuating animus, and so surely, the Steelworkers decision is as well.

It’s time for this to end.

Congress can play a role, too, if it chooses. In recent years, particularly following the election of former President Donald Trump, supporters of Trump have found themselves in discriminatory, being denied services such as banking, public accommodations like sitting at restaurants and yes, employment discrimination. Insofar as Title VI addressed racial discrimination, and Title VII address racial, sexual and religious discrimination, it would be up to Congress, not courts, to expand these franchises. Viewpoint discrimination is no less pernicious than other forms of discrimination and, in some ways, are worse because they seek to police wrongthink and issues of conscience.

The 14th Amendment includes a broader grant than simply protection against racial discrimination, and Section 5 gives Congress a powerful tool to address these sorts of injustices if it chooses. Anyone who questions the Supreme Court’s decision need only consult with Title VI to see the clear framework Congress set forth in 1964.

For now, the Supreme Court’s restoration of the 14th Amendment’s equal protection under Title VI may now eventually extend to Title VII, creating massive constitutional and civil liability for publicly traded corporations that have chosen to adopt ESG’s “diversity, equity and inclusion” racial and gender hiring quotas. This is another pillar that can and I foresee will one day be struck down as well.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.

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