How to talk about the Supreme Court decision on Affirmative Action effectively and accurately

Have you wondered how to bring up the Supreme Court’s affirmative action decision at work or how to broach this subject with your colleagues and superiors?

Here are a couple of ways to start a conversation:

• Thanks for meeting with me. I’m sure you saw the Supreme Court’s decision in Students for Fair Admission. It’s now illegal for INSTITUTION NAME to use racial preferences.

• I know this issue is tough for a lot of people – and that passions run high. But the truth is, we have to uphold the court’s ruling and follow federal law. I’m concerned that we aren’t there yet.

• The court’s ruling goes beyond admissions. Racial neutrality and equal treatment under the law are now required in employment, too. A lot of laws that make this clear: CHOOSE WHAT’S APPLICABLE
  • The Equal Protection Clause of the Constitution applies to public employers.
  • Title VI of the Civil Rights Act of 1964 applies to private and public employers that receive federal funds.
  • Section 1557 of the Affordable Care Act incorporates Title VI and requires equal treatment of all races in healthcare.
  • Title VII of the Civil Rights Act of 1964 applies to all employers with 15 or more employees. 
  • Section 1981 of the Civil Rights Act of 1866 applies to all contractual relationships, including employment relationships. 

• Under these laws and the court’s ruling, INSTITUTION NAME can’t use “diversity” as justification for any racially preferential or discriminatory employment policies.

• For instance, diversity can’t be used to justify how we train future leaders; prepare employees to adapt to a diverse society; or produce new knowledge stemming from diverse outlooks. 

• It’s also illegal to use racial and ethnic stereotypes. And the court made clear that providing benefits to members of one racial group necessarily hurts others.

• Given these facts, I want to talk about PROGRAM, SCHOLARSHIP, ETC. It seems to me that it constitutes the very race-based discrimination that’s now prohibited.

• The Supreme Court’s ruling means that all race-based policies like this must have a firm end point. So my question for you is this: When do we plan to end PROGRAM, SCHOLARSHIP, ETC.?

• If we don’t have plans to end it, why not? I’d like to know the justification for ignoring the court, and more importantly, breaking federal law.

• Like I said, this issue is difficult. But the law is clear. And I want to make sure SCHOOL/INSTITUTION follows it to the letter. This is about protecting our institution, which you and I both love.

• I have heard the reports that schools are trying to come up with “workarounds” to circumvent the Court’s ruling. Those actions are in bad faith, and I know that watchdog groups are on top of keeping them in check. 

These talking points are meant to serve only as a conversation starter. They are not legal advice and do no opine on the legality of any particular policy.