Thirteen Republican attorneys general have sent a letter warning Fortune 100 CEOs against taking race into consideration as part of their employment and contracting practices. They claim this is in response to the recent Supreme Court case banning affirmative action in higher education. But the intent behind their threats has nothing to do with affirmative action—and everything to do with gutting all provisions of the Civil Rights Act of 1964.
The recent letter may have been cosigned by the top lawyer in each of their respective states, but it doesn’t stand up to the slightest bit of legal scrutiny. Their primary argument is that the ruling in Students for Fair Admissions v. President & Fellows of Harvard College has rendered “explicit racial quotas” illegal. This wholly ignores that racial quotas have long been prohibited under the Civil Rights Act, as decided by the Supreme Court in Regents of University of California v. Bakke all the way back in 1978. That’s a full 45 years of settled law that is being ignored in favor of inflammatory threats against America’s largest companies.
So, if the attorneys general letter isn’t about new legal implications coming out of the recent affirmative action decision, what is it about?
In the short term, Republicans are hoping to create a further chilling effect on corporate diversity initiatives that are already on the ropes. Recent controversies surrounding Disney, Anheuser-Busch, and others are fresh in countless CEOs’ minds, who may be worried about attracting the attention of right-wing ideologues. The attorneys general clearly intend to contribute to this environment of fear in hopes that employers will choose to dismantle corporate diversity, equity, and inclusion programs rather than risk a lawsuit.
In the long term, their intentions could be even more nefarious. The letter represents the opening salvo in Republicans’ efforts to attack Title VII of the Civil Rights Act and redefine what constitutes racial discrimination.
The Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin, was not passed in a vacuum. It was initially and expressly designed to remedy the “history of unequal treatment” that Black people experienced because of decades of abuse, bigotry, and subjugation.
The Republican attorneys general suggest that our current environment differs so substantially from where the country was in 1964 that our definition of what constitutes discrimination must change. They blithely and offensively suggest that America has solved racism—that the same law that protects Black employees from being called racial slurs in the workplace should now be race-neutral, so it can be wielded by white employees who feel they have been unfairly passed over for a job.
It’s a laughable argument that is divorced from the practical realities we live in and wholly undermines the intent of the Civil Rights Act. We are not living in a race-neutral environment, a fact born out in the persistent racial disparities in wealth, wages, and promotions—in short, what defines American life. If some Republicans get their way, we never will.
Make no mistake: The attorneys general who issued this letter are showing their hand. They intend to bring or influence lawsuits against employers that have inclusive employment, contracting, and hiring practices in the months ahead, all in service of pursuing another radical Supreme Court decision that upends precedent and guts Title VII of the Civil Rights Act.
This is a cynical political game. It’s not based on sound legal theory that honors legal precedent or legislative history. But that doesn’t mean it can be ignored. If we don’t hold these disingenuous efforts up to the light, we will lose ground under the cover of darkness. If we don’t speak up, our silence becomes complicity.
When the public sector fails us, the private sector becomes one of our most important lines of defense. Every CEO needs to pay attention to what’s happening here and decide which side of history they want to be on.
As the great Maya Angelou tells us, “When people show you who they are, believe them.” We can no longer pretend not to see what is in plain sight. The far right has shown us who they are and what they intend to do. We must believe them, and we must act.
Alphonso David is a civil rights attorney. He is the president and CEO of the Global Black Economic Forum.
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