SCOTT DETROW, HOST:
We turn to the Supreme Court decision that struck down affirmative action and removed racial preference from the college admissions process. The implications of that decision may extend beyond higher education. The new ruling could stifle companies' ability to consider racial diversity in hiring. Harvard law professor Noah Feldman wrote about this for Bloomberg and joins me now. Welcome to ALL THINGS CONSIDERED.
NOAH FELDMAN: Thanks for having me, Scott.
DETROW: So I understand a lot of what you're thinking about this comes from a concurring opinion that Justice Neil Gorsuch wrote. Walk us through about how this case could be applied to the workplace.
FELDMAN: Well, Scott, the Supreme Court decision was about Title VI of the civil rights laws, which covers higher ed. But the question that we have to worry about for the workplace and workplace diversity is a different part, Title VII, which covers workplace discrimination. And Justice Gorsuch wrote a separate concurrence to say that in his view, there is absolutely no reason for the law under Title VII to be any different from the law under Title VI because they use extremely similar words to prohibit discrimination. And so on his logic, which he made crystal clear, if racial diversity is no longer a permissible justification for affirmative action in higher-ed admissions, it would also no longer be a permissible justification for considering racial diversity as part of affirmative action in hiring.
DETROW: So that's the concurring opinion, again, not the majority opinion. But in your piece, you wrote, quote, "practically no lawyer advising a client today could assure the client that it would still be lawful to consider race in hiring." I mean, that seems like a pretty dramatic step, and I'm interested if you could tell us more about that interpretation here.
FELDMAN: Well, if you're a lawyer advising a company that you work for as their - as your client, you want to tell them not just what the law might technically be right at this moment, but what it's going to be interpreted by the courts to be. And the writing is really on the wall here that there's a high probability, a very high probability, that a majority of this current Supreme Court will say the exact same thing that it said in the case of Title VI about Title VII. And indeed, some of them and some lower courts would probably take the view that just by saying what they've already said, the court has already done enough to make it clear that you can no longer use racial diversity as an objective in workplace hiring. And that's why if you were a lawyer advising a client, you would have to tell them that's where it looks like things are going.
DETROW: Yeah. But at the same time, you know, DEI - or diversity, equity and inclusion - has become such a focus recently at so many companies - a big part of decision-making. How do you go about DEI hiring efforts now? I mean, do you see that being struck down, period? What happens next?
FELDMAN: What we're going to see is that some companies may perhaps go so far as to say we're still doing exactly what we've done before. Others will probably change the way they have been talking both publicly and privately. And they will no longer tell themselves when they're making a hiring decision, well, if we have two roughly comparable candidates, this candidate adds racial diversity to our workforce, and therefore, we should hire that person because they'll be concerned that the courts will find that to be unlawful discrimination. And so they will begin to issue guidance to their employees in HR saying this is not how we're going to be able to do it anymore. This is no longer going to be lawful.
DETROW: Well, we've got about 30 seconds left. But the way you framed that - do you think the biggest change will be actual decisions made or the way they are talked about and written about?
FELDMAN: It's going to start with how people speak and write because we're human beings, and we don't just turn on a dime. And having been deeply committed to the goal of racial diversity, we can't just put it out of our heads. But over time, those kinds of changes tend to lead to changes in actual decision-making, and I would anticipate that eventually we're going to see that happening, too.
DETROW: That is Harvard law professor Noah Feldman. Thanks so much for joining us.
FELDMAN: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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