Freedom of Thought, The Corporate World
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Private Sector Diversity Programs: Perks and Pitfalls

Jonathan Berry
Paul B. Matey
Theodore M. Shaw

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It is a growing practice within the business community to engage in diversity initiatives in hiring, promotion, and outside contracting.  A network of interrelated state and federal laws and regulations, including Title VII of the Civil Rights Act of 1964 and enforced by the EEOC, outlaw discrimination on the basis of race, sex, religion, and national origin.  But it may not be clear what the law permits when it comes to discrimination on the basis of race.

Should preferences for race or sex be unlawful in the context of hiring, promotions, professional opportunities, or contracting?

How should diversity and inclusion officers navigate legal precedent in this area?  Is diversity training helpful in the existing legal environment? Does functionally eliminating diversity training via government action benefit the public or create new pitfalls?  


Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights, Uniersity of North Carolina School of Law 

Jonathan Berry, Partner, Boyden Gray & Associates 

Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals for the Third Circuit 

To register, please click the link above. 

Event Transcript

Alida Kass:  Welcome to today’s Federalist Society Virtual Event. This afternoon, Monday, May 23rd, we will be discussing “Private Sector Diversity Programs: Perks and Pitfalls.” I’m Alida Kass, Vice President for Strategic Initiatives at The Federalist Society and the Director of the Freedom of Thought Project, an initiative addressing new challenges and questions involving freedoms of thought, conscience, and expression. Our programming addresses these challenges across our institutions.

      So I’d flag for you our upcoming program, a virtual fireside chat with Professor Eugene Volokh and Judge Stephanos Bibas discussing Alexander Solzhenitsyn’s essay, “Live Not by Lies,” June 2nd at 1:00 PM.

      As always, please note that all expressions of opinion offered today are those of the experts on the program. Today, we will be discussing private sector diversity programs and the law. The private sector has embraced the use of race and sex conscious policies to promote the diversity in the workplace and perhaps gain the benefit of a diversity of perspectives, but it’s less clear how these programs fit within the constraints of our anti-discrimination laws.

With us to moderate this discussion, we’re very happy to have Judge Paul Matey of the Third Circuit Court of Appeals. We encourage our audience to submit questions for our panelists through the Q&A feature at the bottom of your screen. After our speakers have offered their opening remarks, a moderator will rely on submitted questions to direct the panel discussion. With that, thanks for being with us today. And Judge Matey, the floor is yours.

Hon. Paul B. Matey:  Alida, on behalf of the panel, thanks for that kind introduction and the introduction to today’s topic — a topic that’s hardly new. But it has taken on new urgency as the concept of diversity in group settings has moved from education to government, corporate mission statements, employee training, contracting terms. What — we should ask — is our goal? Is it, as Justice Powell reasoned some 43 years ago, exposure to differences, and the most robust exchange of ideas? Or is it agreement on a single narrative accompanied by a numeric goal? Now, where do we look to for an answer? Who, as it is often asked, decides how goals like these should be designed and evaluated? Does context matter and a different lens apply to fully private decisions by corporate actors? Where do the ancient and original guarantees of the Constitution rest in relation to these goals of our 21st century republic?

We are exceptionally fortunate to have this panel to discuss. Including, Ted Shaw, the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the North Carolina School of Law where he focuses on advanced constitutional law. His career in civil rights includes service as director, counsel, and president of the NAACP’s Legal Defense and Educational Fund and as a trial attorney at the Department of Justice’s Civil Rights Division. And we’re also joined by Jonathan Berry, a partner with Boyden, Gray & Associates. Jonathan is also an experienced litigator who most recently headed the Regulatory Office at the United States Department of Labor and previously served at the Department of Justice’s Office of Legal Policy.

Fuller bios for both Jonathan and Professor Shaw are available in the program link. Jonathan, we’ll start today with your thoughts and then turn to Professor Shaw. As Alida said, throughout we’ll welcome you to post your comments and questions for our guests and I will turn to those during our conversation. And like everyone else today, I am delighted to have the chance to learn from these important thinkers. Jonathan, with that, the floor is yours.

Jonathan Berry:  Judge Matey, thank you so much for that introduction. And thank you to The Federalist Society’s Freedom of Thought Project and to Professor Shaw for making this really timely discussion possible.

So at the outset, I’d like to focus on what the law has to say about the use of protected bases, but primarily race, in the two private realms that directly affect or control access to opportunity, namely education and employment. And specifically, I’d like to talk about the two most prominent justifications under which courts will sometimes allow schools or employers to take race conscious action. Those are, one, diversity and two, remedying past discrimination. And as it happens, they correspond in some ways to education and to employment, respectively.

On diversity, maybe the most interesting thing about diversity doctrinally as a justification is how narrowly it cuts. As far as the Supreme Court has weighed in, diversity only justifies race conscious action in the unique context, and that’s not just my word, that’s the Supreme Court’s words, of higher education, whether in the Equal Protection Clause or under Title Six’s ban on discrimination by private entities who receive federal funds. The Court has had a lot of back and forth across many fractured opinions that we’ve all enjoyed trying to piece together over the years.

But I’m going to quote here from the majority opinion in the first Fisher v. UT Austin case. This was a seven-justice majority opinion with only Justice Ginsburg dissenting and Justice Kagan recused. The Court here is summarizing Justice Powell’s controlling opinion from the Regents v. Bakke case when it says that he, “Identified one compelling interest that could justify the consideration of race — the interests and the educational benefits that flow from a diverse student body.” Redressing past discrimination could not serve as a compelling interest because the university’s broad mission of education is incompatible with making the judicial, legislative, or administrative findings of constitutional or statutory violations necessary to justify remedial racial classification. The attainment of a diverse study body, by contrast, serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes. And then in Grutter, the Court likewise — they tied the diversity rationale to the “Important purpose of public education and the expansive freedoms of speech and thought associated with the university environment — especially appropriate, I think, for this setting and this discussion and our hosts.

With that discussion, it also becomes clear how, under the doctrine at least, how limited the diversity rationale’s reach is. The Court made that particularly clear in the Parents Involved in Community Schools case where a five-justice majority refused to extend the Bakke Grutter license to a race-based student assignment system for K-12 schools. Now, I think it’s fair to say, Parents Involved did not necessarily shut the door completely on extending the diversity rationale but it’s pretty close. In one of the cases challenging the state of — my home state of California’s corporate board diversity quotas, for example, recently — not our case, but ones brought by our friends at Pacific Legal Foundation — there the district court refused to extend the Grutter diversity rationale to the board’s context really by reading the cues in Parents Involved. And now, of course, it looks like the Supreme Court is reconsidering even the higher education angle with the Harvard and the UNC affirmative action cases being argued this fall.

So that’s the diversity rationale. The other is remedial, specifically there is a judicially recognized justification for race conscious plans designed to remedy past discrimination. This is where a lot of the action is over things like minority preferences in government contracting or more recently, some of the race conscious funding priorities in relief programs like the restaurant Covid fund or a farm loan forgiveness program. And remember this rationale, per Justice Powell, is not available in the higher education context.

I think in the private sector, of course, where this does the most work perhaps is in employment — Title Seven. Title Seven of the Civil Rights Act of 1964 forbids hiring, promotions, firing, so on, on the basis of an individual’s race, color, religion, sex, or national origin. And there are some additional cues textually suggesting that really does set a bright line. There’s an expressed Savings Clause carving out employers on or near a Native American reservation who want to give preference to Native Americans. And there’s likewise expressed textual license to use a person’s sex, religion, or national origin as a bona fide occupational qualification in limited circumstances but never someone’s race.

Nonetheless, in a 1979 case called Steel Workers v. Weber, the Supreme Court sketched out a pathway by which employers could voluntarily adopt race conscious affirmative action plans as a remedy to past racial discrimination. That case upheld a plan created in 1974 to remedy what were absolutely huge racial imbalances in the higher earning skilled job positions at that workplace. The Steel Workers court justified its reading of Title Seven with the observation that Congress’s primary concern in the prohibition of discrimination in employment was with the plight of African Americans in the economy. And I think, as an aside, that has to be right. But the Court went further and here’s the quote, “It would be ironic indeed if a law triggered by a nation’s concern over centuries of racial injustice and intended to improve the lot of those who had,” they’re quoting Hubert Humphrey, “been excluded from the American dream for so long constituted the first legislative prohibition of all voluntary, private, race conscious efforts to abolish traditional patterns of racial segregation and hierarchy.”

But even here in Steelworkers, which is really the Court’s high-water mark in licensing affirmative action in private employment, the Court flagged multiple aspects of the plan in question, tailored it narrowly to that remedial purpose. The plan did not require the discharge of white workers and their replacement with new black hires. It did not create an absolute bar to the advancement of white employees. In fact, half of the employees trained in the program at issue would be white. And maybe very importantly, the plan was a temporary measure. It was not intended to maintain racial balance but simply eliminate a manifest racial imbalance. Absent those remedial tailorings, the Supreme Court has never blessed an affirmative action plan in employment without that remedial rationale. The only court to weigh in in a case like that said that a non-remedial — you can call it affirmative action plan — is forbidden by Title Seven. And in fact, that was your court, Judge Matey, in a case called Taxman — about 1996. The Third Circuit did that.

So when it comes to remedying past discrimination, my main questions for this conversation and for Professor Shaw especially really relate to that tailoring. Steelworkers — the Court gave out multiple factors to ensure that any race conscious plan was narrowly tailored. So questions here would include, is it appropriate, can it be appropriate to use race as a proxy for having suffered past discrimination, for example. Or do we need to tailor any kind of race conscious remedy to victims of — it could be de jure segregation or perhaps downstream as well. And these are questions that come up a lot in these contexts.

And the last thing I’ll say is that the focus here, these private sector realms on education, employment, these are realms that in many ways control access to opportunity in our society. And if we — I’d observe, insofar as we use race as a proxy for disadvantage when we’re talking about those kinds of portals of access, it starts to create some weirdness and some potential disjoint. So anyway, I’ve gone on long enough for now. But I’m, again, glad to be here — really glad to be having this conversation.

Hon. Paul B. Matey:  Jonathan, thank you for that. Professor Shaw, we happily turn it over to you.

Theodore M. Shaw:  Well, thank you. And thank you once again to The Federalist Society for inviting me to mix it up with you all. I’m glad to be here and Judge, as we have indicated, it’s always good to be together. So I appreciate your guiding this discussion. I’m pausing for a minute because Jonathan, you appropriately mentioned the Taxman case — the Piscataway case — and I want to come back to that. I thought maybe I’d start with it, but that’s not the place to start. I do want to come back to it.

But the place to start when we talk about diversity is appropriately, Bakke. And that case in 1978, of course, involved higher education. And that was really, as far as I can surmise, really the first instance in which the Supreme Court talked about diversity, and it wasn’t even the Supreme Court. It was Justice Powell in his opinion that bridged the two camps of justices who considered the question about whether or not race conscious measures in higher education were constitutional or otherwise legal. And, if we look at the case law prior to the Bakke case, the discourse mostly was about the remedial justification, particularly under the Fourteenth Amendment. But even in other contexts. And of course, Title Seven stands as its own statutory provision with respect to a nondiscrimination principle. But diversity came up in Bakke in the opinion of Justice Powell even at the same time that Justice Powell essentially threw, as I often say, the remedial rationale under the bus. The Bakke decision really left the remedial rationale all but dead when it came to higher education. And, in many respects, did a lot of damage to it even outside the context of higher education.

And yet, we’re here today talking about diversity in the private sector, in employment, in particular and that was neither the starting place nor is it, at this point, the ending place — or it shouldn’t be the ending place when we talk about the rationale that’s available to answer the question about when and under what circumstances race conscious measures may be legal or allowed. And, of course, we’re at this moment where we have the Supreme Court — this Supreme Court — the most conservative Supreme Court in any of our lifetimes on the verge of considering next term the question of whether race conscious measures in higher education, a la Bakke, a la Grutter, and the two Fisher cases are going to be, in any circumstances, allowed. And so we’re at one of these singular moments right now.


Let me just say two things very quickly. There’s a whole lot more that can be said. It’s a great irony in my view that, as you correctly point out Jonathan, that the Title Seven allows, under some circumstances, consideration of sex, consideration of national origin concerns, and actually gives more leeway with respect to those kind of considerations than race. The great irony is that race, the singular evil in this country’s history — the notion is that, in order to protect against racial discrimination, we make it almost impossible nowadays to do anything about racial inequality itself in a conscious way. I think that is a great irony in some respects, but it’s because of Bakke once again — the notion that there’s no distinction between race conscious measures that are taken for purposes of promoting inclusion and, on the other hand, race conscious measures that are based in the notion of inferiority superiority and that are invidious. Justice Powell seems to make that distinction.

Having said all that, let me turn for a quick minute to Taxman — the Piscataway case — and say a quick word about that decision. Taxman was a case involving the Piscataway, New Jersey School Board in which the school board considered race in a layoff situation, which should have been a no-no for the school board. And the Supreme Court had spoken to the issue of race conscious layoffs — a race consciousness in a layoff situation in Wygant v. Jackson School District and made clear, or made clear enough, that it is almost never appropriate to use race in the context of a layoff situation. Nonetheless, and I could go into great detail on it, that’s what the Piscataway School District did. Anyone with knowledge of the governing case law would have told them, “Don’t do that.” First of all, the school board, in doing so, was putting at risk any efforts to engage in affirmative action in the employment context across the country — could say a lot more about that — but it did it anyway. It should never have done what it did. And that case involved, ultimately, a settlement that upset a lot of people on the conservative side of the aisle because the Supreme Court didn’t get the opportunity that it appeared to be on the verge of getting to really strike down affirmative action in the employment context in almost all ways that it could have. But the case, ultimately, was settled. And from the standpoint of the civil rights lawyer who believed that we want to be able to consciously promote inclusion, I thought that was a good resolution in that case.

Fast forward to the moment. Here we are once again in the context of higher education and the question of whether diversity in higher education is appropriate and is allowed. It will bleed over whatever happens here if the Court overturns its long line of precedents in the context of higher education. It will bleed over into the rest of society, including diversity efforts in employment in all likelihood. And if it doesn’t do that explicitly, those who are opposed to affirmative action or diversity efforts will come back and try to expand whatever the Court decides, if they rule in favor of Students for Fair Admissions, into those other areas. So we are in a particularly troublesome moment, and I think that all eyes are going to be watching what happens in the higher education case. We have not yet talked about California and board diversity etc. and I assume, Judge, that we may still get to that. But I’ll cease for the moment.

Hon. Paul B. Matey:  Well, professor, thank you for those remarks. And indeed, we should. So maybe two questions coming out of those comments that I welcome either of you to respond to. So first, and maybe Jonathan, you could start with this given Professor Shaw’s remarks, let’s assume for a moment that the Court finds a new path regarding the concepts of diversity, affirmative action, remediation for past harms in the higher educational setting in the coming years. How do you see that affecting what has now become a kind of separate and severable system of diversity, inclusion, and remedial training, and priorities in the corporate sector? Do you think it is necessarily still tied or do we see something that may be a separate mission that now arises?


Jonathan Berry:  That’s a great question. I think that — right. Sort of doctrinally, as we’ve laid out, as a bare bones formal matter, these are on separate tracks. But I think Professor Shaw is completely right that functionally we should — culturally, socially, operationally — we should expect a bleed over. So if hypothetically, the Court ultimately overrules its reliance on the diversity rationale in the higher education context, I think where that’s — you have today a lot of private sector initiatives that are in employment, in corporate board appointments as well — and a lot of different folks are pushing for that kind of thing — that are grounded — that really are justified in terms of diversity and not specifically along the lines following the narrow path or narrower path traced by the Court in Steelworkers in the Title Seven affirmative action case. So if, for example, the — if the Supreme Court goes in really hard on that and says something that sweeps a little more broadly that talks about intellectual diversity — diversity of perspectives or something like that — I think that becomes something that critics of some of these overbroad diversity initiatives are going to start pointing to, I think both in the court of public opinion but also as appropriate in Article Three court.

Hon. Paul B. Matey:  Professor, your response?

Theodore M. Shaw:  As I indicated, Jonathan and I are in agreement apparently that all those questions will be up for grabs. I want to point, however, to the question of board composition in California. And I want to point out that, whatever the merits of California’s efforts to get corporations and companies to be more inclusive in their board memberships, there’s an important distinction to draw between issues like employment or in hiring or employment with respect to layoffs or for that matter admissions in higher education. All these struggles, all these battles in those contexts have been about who gets opportunities and who doesn’t get opportunities. And the assumption has been, although we can argue it, is that these involve zero-sum games.

Board membership is hardly something that I think of as involving a right. Boards of corporations may reflect corporate values. There may be other reasons that boards should be more inclusive and maybe those reasons go to the functions of those corporations — the board profit — rather corporate profitability, etc. Having said all that, we who are involved in inclusiveness and those efforts have long known that, going back to Bakke, anytime we engage in any activities that use quotas, we are on dangerous grounds when it comes to legalities, and I get that. I understand that. And so, whether it’s prudent or not to actually involve quotas is one thing, but I still point out that, when we talk about board membership again, we’re not talking about the kinds of zero-sum games that people thought we were talking about in context of employment or in the context of admissions.

So I wanted to underscore that. Yes, anytime we have quotas, we probably are going to see litigation, and in this conservative judicial environment, we’re on thin ice, those of us who believe in inclusiveness. But it’s not quite the same thing as the questions that are being posed in the two higher education cases before the Supreme Court. Let me be clear. I, of course, am opposed to SFFA’s lawsuits and what they’re trying to accomplish. But I’m still drawing another distinction.

Hon. Paul B. Matey:  Let me pick up on that point and maybe direct this back to Jonathan. As we know that the rationale that Justice Powell offered in Bakke was this idea that the mission of the universe, the growth of future citizens, of members of the republic, necessarily required a broad range of ideas and that that broad range of ideas would best be represented by a broad swath of individuals. And so it was kind of consistent with the classic notion of the university. One of the questions that comes up — is starting to come up in relation to corporate missions — is, how is it that the mission of diversity directly relates to the mission of the firm? If a corporation, for instance, is in the business of simply selling a good or service, how is that intrinsically related to the notion of diversity? So do you see an overlap between those two missions that can be accommodated, perhaps by notions of corporate law? Or do you see some sort of irreconcilable tension? Then, we’ll let Professor Shaw obviously respond.


Jonathan Berry:  Yeah. Absolutely. So we dealt with this in the challenge that we filed on behalf of the Alliance for Fair Board Representation against the SEC’s approval of NASDAQ’s corporate board. You can call them — well there’s debate over whether to call them quotas or not — but in my case, we called them quotas, which — one of the justifications that the NASDAQ stock exchange had put forward was that improved diversity along lines of, in that case, both — there was one tranche of diversity of sex and the other was diversity of racial — race and or sexual orientation — was going to lead to improved corporate performance. We submitted research indicating that, when diversity is defined along those identity categories, that the evidence is not there and that there’s evidence of correlation, I think maybe most prominently McKinsey has a study along those lines.

And to my — I will admit — to my surprise, after we made that submission at the regulatory phase with the SEC, the SEC actually backed off of that rationale that diversity mandates improve corporate performance in its finalization and instead fell back to, “This is something that a certain subset of the investor class is clamoring for and that’s all we need under the law.” I think the issue comes down to the equivocation between diversity along one of these legally cognizable categories of race or sex with diversity of viewpoint. And there is a parallel, I think, between the corporate board context and the university seminar classroom of diversity of viewpoints, but part of our argument is that you can’t automatically equate the two.


Hon. Paul B. Matey:  Professor?


Theodore M. Shaw:  Well, there’s a lot that we could say about the viewpoint issue because the viewpoint issue, in some ways, goes once again back to Bakke, at least when it comes to race. The idea that Justice Powell had was that universities could seek diversity among the student bodies because that benefits all of the students. And the notion that race equates viewpoint isn’t necessarily essential to the reasons why we may want to pursue and achieve diversity. What am I talking about? Well, for example, let me use Fisher for a quick moment. There was an exchange in oral argument in Fisher — I believe it was Fisher two. I should really pull up the transcript of the oral argument. But I’ll remember it best I can. Justice Alito, in an exchange with the counsel for the University of Texas, talked about a hypothetical student who was the son or the daughter of a black professional doctor or a couple — a doctor, for example, maybe a lawyer etc. — and said, “I thought what we were trying to do is to really help people who are disadvantaged, but how does disadvantaged work in this circumstance? These are not disadvantaged people.”

Well, my response to that would have been, “Look, Bakke killed the remedial justification. You’re talking about the remedial justification. Bakke all but killed that.” On the other hand, it is not accurate to say that the African American son or daughter of a professional couple does not bring some different experience or perspective to a higher educational institution. It doesn’t mean they all have the same exact view of all other black people. But it’s also inaccurate to say that the experience of being African American, even for African Americans who may be privileged, is exactly the same as white Americans or for that matter all black Americans. That’s not the point. That was never the point. If you all but killed the remedial rationale, which I think was wrongheaded, at the same time the diversity rationale is what you left us with. And the diversity rationale does not mean that being black does not have any experiential value for higher education if that’s all you left us with — the experiential value of what students bring to a university. Am I making sense? Let me hear some engagement on that if I may.


Hon. Paul B. Matey:  I’m happy to let Jonathan answer that, of course. And I want to sort of add to that a question that has come from the audience that sort of speaks to this. Do the panelists see Bakke as really the shifting point when policies against exclusion have now turned into policies for inclusion? And if that is the case, do we face a kind of challenge with the subjective nature perhaps of the concept of diversity itself? Has diversity in some ways shifted its historical meaning such that it now is more difficult to prescribe an objective standard of evaluation? And if so, does that challenge the abilities of universities, corporations, any firm to meet that goal? And I offer that to either participant.


Jonathan Berry:  Well, I guess just briefly, though I’m very interested in Professor Shaw’s perspective on this especially I think put in a larger historical context, I think it does — I think it creates challenges when you appreciate how heavy of a thumb on the scale, so to speak, that our laws today, really starting with the reconstruction amendments, but then continuing into — well, jumping forward to the 1964 Civil Rights Act — how heavily those put a thumb on the scale against race conscious programs and systems and the like. Once you’ve moved off of — I think Professor Shaw is totally right — that once you move off of — if anything is going to justify taking race into account, irrespective of the textual prohibitions or the Equal Protection Clause, implicit textual prohibition there — you’ve got to tie that to some kind of concrete injustice. And instead what you’re seeing today with a lot of these — a lot of diversity programs is something that’s a lot — it’s just a lot looser. It’s either in the sense — as with the corporate board stuff — like, yeah, there’s some value to this. But is it enough to clear that bar — that very high bar in the law? I think, generally speaking, no. Perhaps universally, no.


Theodore M. Shaw:  So let me, Judge, come back to, I think, the question you put to us — say a word about that, then say something prompted by your comments, Jonathan. The Bakke case, to the extent that it came up with this rationale or Powell came up with this rationale of diversity — we don’t see the struggle that we have over issues of race when it comes to diversity when it comes to gender, for example, or some of the other bases that are protected by Title Seven. That’s because the Bakke five members who were opposed to race conscious measures in the context of admissions, they equated — refused to draw a distinction between, as the terminology was then used, so called benign discrimination and invidious discrimination. And they equated mere race consciousness — it’s my use of the term mere — but mere race consciousness with racism. And I contend that race consciousness was not the evil and is not the great evil in our society. Race consciousness in and of itself is not the great evil that some people make it out to be in these challenges to diversity efforts in admissions, etc. Racism is the evil. And the failure to make that distinction, I think, does not reflect the depths of thinking that we ought to be giving to these issues if we’re talking about inclusiveness. But that perhaps goes back to the failure to address and remedy our long history of discrimination.

The other thing I wanted to say is that the heat on these issues, ironically — and I tried to say this before — is not in gender, for example. There is more diversity with respect to women in corporate America and there’s going to be more inclusiveness when it comes to women. The same isn’t necessarily true without what you described as a thumb on the scale when it comes to race, particularly for African Americans but not exclusively. So I had another point that I wanted to make but I’ve talked myself out of remembering what it was Jonathan. It was in response to something you said. Maybe it’ll come back to me.


Jonathan Berry:  Story of my life. If I may, just one additional consideration to throw out there. So I agree. One of the key points, I think, in the Steelworks decision that upholds the voluntary affirmative action plan that Kaiser Aluminum had is that, clearly, the primary purpose of Title Seven’s ban on racial discrimination in employment is to shore up, protect, improve the economic lot, specifically the employment lot of African Americans in our economy. Absolutely. The fact that that is the, I think, unquestionably the primary evil aimed at the statute remedying doesn’t necessarily answer what to do about a variety of lesser evils. And so, like the example I would point to in the sex discrimination context — I wish I could get the verbiage right, but this is the Oncale v. Sundowner case from the late — I think it’s the late ‘90s where this was a male-on-male sexual harassment case — and, right. And the Court says like, “This was clearly not the primary evil at which the ban on sex discrimination is aimed at. But it doesn’t change the fact that the law forbids it all the same.” And so there’s that whole question of — there’s different ways to fight and to undue the subordination, especially of African Americans in our economy and every other aspect of life. The question is, do we do — so is race blindness or race consciousness the means by which the law as it stands today sets out how we’re supposed to pursue that?


Theodore M. Shaw:  Yeah. Let me go back to Weber with you that you appropriately raised and brought up. In Weber, if I remember correctly, the opinion told us that — I think it was something like 1.8 percent —

Jonathan Berry:  1.38. It was really — I think I know what you’re referring to. I just read it this afternoon.

Theodore M. Shaw:  — of the skilled craft workers. I actually think it was — it doesn’t matter, I mean, why quibble? But at 1.83 — same difference — were black. Even though the workforce was about 39 percent black. Now, look, it’s well established again that employers don’t have to meet a quota that reflects the workforce exactly. On the other hand, the 1.83 percent of skilled or craft workers being black.

Jonathan Berry:  It’s pretty stark.


Theodore M. Shaw:  Yeah. Pretty stark. And reflected a history and a background where race discrimination itself was real. And that’s what the company was trying to deal with there and you ended up with this voluntary affirmative action program.

If we look at the stark percentages of disparities still experienced by African Americans, whether we’re talking about wealth, whether we’re talking about income, whether we’re talking about home ownership. I could go on and on. These disparities continue today. Yes, we made a lot of progress. There’s no question about that. At the same time, the notion that institutions and employers, higher educational institutions etc. have to gouge out their eyes when it comes to issues of race because somehow efforts to open up opportunities or achieve more diversity gets equated with the long invidious history that produced the kinds of numbers like 1.83 that Kaiser Aluminum was dealing with and the pithy numbers of African Americans, and for that matter, we could talk about other groups that have been discriminated against. But those things should not be equated. The inability of the Supreme Court to draw distinctions between what was called invidious discrimination and efforts to include simply by saying that all race consciousness is evil is, in my mind says more about me, some people will say. I’m sure not everybody here is going to agree with that. But that’s the kind of lunacy or idiocy that I can’t wrap my mind around. Every time I do these programs, I think I won’t be invited back. So there you go.

Hon. Paul B. Matey:  And yet, here you are again because we cannot improve on your contributions. A question for both Professor Shaw and for Jonathan that has shown up a couple times now in the comments is this question of the remedial remedy that was jettisoned in Bakke. So the first would be a question perhaps for you Professor Shaw which is, would you favor a restoration of the remedial remedy in a new line of jurisprudence? And then I think for Jonathan as well, there’s obviously the famous lines of Justice O’Connor regarding the 25-year clock and this concept that any sort of remedial remedy would have to have an outer end on it. And I welcome your thoughts on that part as well.

Theodore M. Shaw:  No, thank you for that question. And my short answer is yes, I would favor a revisitation and looking once again at the question of remedying the causes and the sources of inequality in our country in various contexts. Justice O’Connor’s “25-years” when she articulated it — I know I wasn’t alone. But my reaction was, “Where does that come from? Where does she get that?” What in our experience as Americans makes us think that this thing that we’ve been struggling with since before we were a country, this thing that was the underlying cause of the Civil War, this thing that continued for another century after the Civil War and that we only began to address in a deliberate and conscious way 50 some odd years ago, approximately. What possibly could make her think that this was going to disappear in 25 years?

Now, Justice O’Connor and one of her former clerks actually wrote an article that is part of a book that was published on affirmative action “25 years,” on which they backed away — she backed away from that “25 years” notion. And here we are. Basically we’re there — almost there, 25 years later, and look at what we’re dealing with with respect to issues of race and white supremacy and the divisiveness in this country. And let me quickly say, the cause of these problems is not deliberate efforts to ameliorate our long history of discrimination that has brought us to the inequality that continues with us today. The cause is that we still have unfinished work to do.

Jonathan Berry:  So I can’t add a ton to that. But what I will say is, I do think if — yeah, I think it’s possible that the Supreme Court — it might be the case that the Supreme Court opts to take the remedial escape hatch on the Harvard case. That’s one way. There’s a lot of ways it could be resolved. But that would certainly bring the higher education space doctrinally into greater alignment with the rest of how we think about the use of race both publicly and privately for that matter. What I —

Theodore M. Shaw:  Interestingly enough, Jonathan, there’s this — I apologize. Let me put this in real quickly. There’s a report that Harvard has just issued about its own history of discrimination and racism, interestingly enough. Yeah.

Jonathan Berry:  Yes. I wonder if they’ll — I’m reminded of — Princeton, two years ago, had statements about systemic racism that got them into some trouble with the Department of Education, although I suspect that investigation has stopped if I had to guess.


Theodore M. Shaw:  I think you’re right.


Jonathan Berry:  Yeah. Can’t imagine why. Either way.

Theodore M. Shaw:  But they’re not out of controversy with respect to issues of race.


Jonathan Berry:  No kidding. Yes. Yeah. For sure. The thing that I would want to focus us on though, and it comes up with the 25-year clock concept, it comes up in just a lot of these is this question of tailoring, is having remedies that are genuinely tailored to the, ultimately, I think, to the causal responsibility of the entity that’s now offering this race conscious program. There’s one way in which — so Harvard today, or even Harvard in recent decades, what has their contribution been to racial disparities, for example. And contrast that with Kaiser Aluminum in the Steel Workers case where the affirmative action plan that was agreed to at that time was made in 1974. So that is within the work life cycle of lots and lots of folks who had been in the relevant work force at the time when de jure segregation ended in 1964 and obviously, lots of resistance and the like to that actually being implemented.

And then you further have what seems to have been upstream kind of pipeline racism by the trade union in question that, I guess by 1974, had been worked out because they agreed to this plan. But it was there as well. That’s a much tighter nexus with actually causing racial disparities in that case in employment. And there’s big lifetime earning differentials between being unskilled and being a skilled craftsman than what we’re dealing with in Harvard. So I’m curious if Professor Shaw would like to put out there like, what are the guideposts we can think through to help us figure out when is enough, what does an appropriate tailoring regime look like?

Theodore M. Shaw:  Yeah. So I don’t know that I’m going to win any friends when I say what I’m about —


Jonathan Berry:  It’s a safe space.

Theodore M. Shaw:  — but the notion of a time limit as articulated albeit, as I said, she backed away from it, by Justice O’Connor and it’s well established in Supreme Court and lower court case law that time limit with respect to a remedy. It makes sense. It makes sense because, if what we’re trying to do is remedy inequality that’s based in our history of discrimination or a particular institution’s past discrimination, at some point you get to the place where we hope that the cure has worked. Although, I think that the long history of discrimination requires more time than what we like to think very often. The same is not true though with the diversity rationale which is all the Court left us with basically with respect to the Bakke decision. If that’s your rationale, diversity is the rationale, what requires — what makes us think that diversity won’t be a continuing compelling interest?

Now, what we hope for is that we get to the point where we don’t have to consciously do anything to produce diversity. But diversity still will remain a compelling state interest if that was the interest that was upheld in Bakke, and it was the interest. And so my point is is that time limit for a remedy, yeah, but time limit is not inherently and needn’t be inherently a part of the diversity rationale because what Bakke left us with is the university’s interest. It threw the interest of African Americans and people of color, frankly, under the bus in Bakke and left us with the institutional interest. But that interest will survive on the part of the university. The only question is whether we have to do something to accomplish it.

Hon. Paul B. Matey:  This discussion of time limitations is timely as we are up against the clock. But Jonathan, I want to give you the floor one last moment to offer any final response to Professor Shaw’s point.


Jonathan Berry:  Wonderful. Thank you. Let me say this has been a wonderful discussion. I really really appreciated it. I think I will — let me cast a vote in favor of clarity, which I hope this conversation has helped with, that it really does seem like the deployment of a time limit in Grutter, for example, is an example of conceptual confusion of taking a remedial rationale, in a sense, by another name and putting it under the diversity heading. And I think that thinking crisply as we’ve tried to do today, I hope that these are distinct things, is going to be useful going forward.

Hon. Paul B. Matey:   Thank you, Jonathan. Notably absent from our conversation is the most powerful branch, that is the role of Congress. One of the more intriguing things that came up in our discussion was how much we saw this as a matter of judicial interpretation against or with the actors in the private sector with little thought, seemingly, about what it is that the elected representatives could do, for instance, to address the language of Title Seven which obviously, gives some of these interpretive problems. All food for thought and my hopes, thanks to Alida, food for a further presentation. And with that, I will turn it back over to her.

Jonathan Berry:  Thank you.

Alida Kass:  Thanks so much. And absolutely, I look forward to this being the first of several discussions on this topic where we’ve barely scratched the surface. On behalf of The Federalist Society, I want to thank our panelists and our moderator for the benefit of their time and insight today and thank our audience for joining us and participating and offering some really strong questions as well. We welcome listener feedback by email at [email protected]. And a reminder, we invite you to join us for our next freedom of thought program June 2nd with Eugene Volokh and Judge Bibas on the Solzhenitsyn essay, “Live Not by Lies.” You can visit our website and watch your emails for registration information there. Thank you all for joining us today. We are adjourned.

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