Oh look! Another W! pic.twitter.com/EXCtpwkGMA
— James Lindsay, anti-Communist (@ConceptualJames) July 7, 2024
Right-leaning public interest groups have filed a barrage of federal lawsuits intended to dismantle long-standing corporate and government programs that consider race in awarding jobs and other perks, and their litigation already is eroding the use of affirmative action in an array of American institutions.
One year after the Supreme Court struck down race-based admissions at Harvard and other schools, court rulings have forced the removal of racial preferences from two major covid relief programs, a federal contracting program that doles out $20 billion a year, and even the U.S. Minority Business Development Agency, a 55-year-old agency that was ordered in March to open its doors to all races. Meanwhile, private companies are acting preemptively, seeking to avoid litigation by terminating fellowships and executive bonus programs aimed at employing minorities.
“The goal is complete race neutrality. That is the end goal of all this litigation,” said Daniel Lennington, a lawyer for the Wisconsin Institute for Law & Liberty (WILL). “It’s a view of radical equality that we think is in line with the Declaration of Independence.”’
Encouraged by the Supreme Court’s conservative majority, WILL and other groups have filed more than 100 lawsuits since 2021 challenging racial preferences and other efforts to address demographic disparities in business, government and education, according to a Washington Post tally based on news articles, law firm newsletters and interviews.
More lawsuits are in the pipeline. Through social media, the conservative legal groups are urging anyone with a gripe about racial preferences to give them a call. “Wherever you live, if you’ve been treated differently because of your race, contact us!” Lennington posted on X.
Another group, Color Us United, runs a “DEI Tip Line” from its website.
And at America First Legal, former Trump adviser Stephen Miller warns in a promotional video that corporate policies “punish Americans for being White, Asian or male” and advertises a toll-free phone number to call for free legal services.
While cases of “reverse discrimination” have been brought in U.S. courts for years, the conservative campaign has been invigorated by the Supreme Court’s ruling last June that race-based college admissions decisions at Harvard and the University of North Carolina violated the Constitution’s guarantee of equal protection under the law.
Recent victories in court — along with a rising volume of complaints filed in districts with conservative judges — suggest this wave of litigation could substantially alter how American institutions handle issues of race. Even advocates of diversity programs acknowledge that some long-standing practices are endangered.
Any organization that provides a palpable benefit to a person based on race, national origin or sex now runs a potential legal risk, said Kenji Yoshino, a professor at New York University and the director of the Meltzer Center for Diversity, Inclusion and Belonging. Under the current direction of the Supreme Court, Yoshino said, it will be “virtually always illegal” for a government or private entity to use racial classifications for hiring, promotion or other benefits.
Other, more limited programs to promote diversity — such as anti-bias training and efforts to ensure fairness in hiring — will remain, he said, adding: “The Supreme Court is never going to complain about attempts to remove bias.”
‘A chilling effect’
So far, the conservative groups have won their most significant victories against the federal government.
In addition to rulings against the Minority Business Development Agency and the covid relief programs, a federal judge last year ordered changes in a U.S. Small Business Administration program that offered preferences in contracting to “socially disadvantaged” individuals. After a White woman sued, the court said the agency could no longer automatically presume racial minorities fit that definition, and the agency began requiring all applicants to document their disadvantage.