American DBE Magazine Feature Story: The Challenge to Diversity, Equity and Inclusion

The Challenge to Diversity, Equity and Inclusion

by Rodney K. Strong and Trinity Williams

It is clear to even a passive observer of current events that diversity, equity, and inclusion are under attack in the United States. The decisions of the Supreme Court have always been a determining factor in the continuous struggle for equal opportunity for African Americans, women, and other minority groups, and recent challenges to affirmative action have been no different. Recent changes in the composition of the Court have precipitated challenges to what had been considered settled law and represent a sea-change in the landscape of equal rights. This shift poses an existential threat to programs seeking to promote equity in educational institutions, public contracting, and even the corporate sphere. The question we must ask ourselves as diversity, equity, and inclusion professionals in procurement is what, if anything, can we do next? How do we continue to combat barriers in the marketplace to ensure that minority, women-owned, and disadvantaged businesses have a fair chance at success?

While an anti-affirmative action ruling seems unsettling, it is a possibility we have prepared for in the past. In the case of the City of Richmond v. J.A. Croson,[1] it was determined that the Equal Protection Clause of the 14th Amendment did not allow the City of Richmond’s minority set-aside program to set goals that give preference to minority businesses when awarding municipal contracts. The Court determined that the city had failed to demonstrate both the need for corrective action and the inadequacy of available “race-neutral” remedies. One of the authors of this article, Attorney Rodney K. Strong, put together a group of lawyers, economists, and statisticians in 1989 to craft the City of Atlanta’s first disparity study in response to the Court’s ruling in Croson, which threatened to end M/WBE programs nationwide. The “BrimmerMarshall Study” provided a factual predicate that guaranteed that Atlanta’s program could withstand judicial scrutiny under the Supreme Court’s new guidelines that were birthed from the Croson case. It provided the basis for the establishment of the City’s still thriving Equal Business Opportunity Program.

Part of the Brimmer-Marshall Study was a historical examination of the Supreme Court’s lack of racial neutrality in past rulings. This is particularly important as we look toward an uncertain future. The Supreme Court’s decision in Dred Scott v. Sanford[2] ruled that persons of African descent could not be, and were never intended to be, citizens of the United States, whether slave or free. This decision was a stepping stone to the Civil War, followed by the passage of the 13th, 14th, and 15th Amendments to the United States Constitution. With these Amendments, African Americans became citizens and were guaranteed the right to vote and equal protection under the law.

However, the Court would rule again in Plessy v. Ferguson[3], that African Americans could be segregated in public accommodations if they were provided accommodations that were “separate but equal”. During the years that followed, various methods including violent insurrection were used to deprive African Americans of the equal right to vote, use public facilities, purchase housing, get an education, and wealth-building jobs and activities afforded to white citizens. A combination of Supreme Court rulings upholding racially discriminatory state laws and extra-legal mob violence effectively abrogated the constitutional rights earned on the battlefield in the American Civil War by almost 200,000 African American servicemen and women and ushered in the period we now call “Jim Crow” racial segregation.

Rodney Strong

It took years of litigation, primarily led by the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund, before the Supreme Court of the United States overturned Plessy v. Ferguson in the famous Brown v. Board of Education[4] case. The period after Brown was decided in 1954 until about 1972 is considered the “classic” civil rights movement during which three landmark pieces of legislation were enacted: the 1964 Civil Rights Act, which outlawed discrimination in employment and public accommodations, the 1965 Voting Rights Act, which addressed many of the obstacles that minorities faced in exercising their right to vote, and the 1968 Civil Rights Act, which addressed discrimination in housing. There has been continual litigation in each of these areas ever since the passage of these laws and numerous important cases in the areas of public accommodations, equal employment opportunity, public contracting, education, and housing. All these decisions have been related to one another because they all stem from the same issue: Whether those who have been legally excluded—including those whose ancestors were enslaved on these shores—will be given an equal opportunity to compete in society and have the opportunity for the same quality of life.

In recent years, private companies and governments have increasingly established supplier diversity programs, diversity, equity, and inclusion programs, and contract compliance programs to ensure a more level playing field for minorities and women. However, late in 2020, Justice Ruth Bader Ginsburg passed away and her seat was filled by conservative appointee, Justice Amy Coney Barrett. For the first time in several generations, there is now a solid 6-3 conservative supermajority on the Supreme Court. When this occurred, we immediately observed litigation in areas that had been considered to be settled law. The most prominent example is Dobbs v. Jackson Women’s Health Organization[5] in which the Supreme Court overturned longstanding precedent and declared that there was no right to an abortion, effectively ruling that the right to privacy, which had been articulated in Roe v. Wade[6], was no longer settled law. This newly appointed Court has demonstrated that they are willing to reject established precedent. They have now turned their attention to affirmative action.

Trinity Williams

Facing the Threat to Affirmative Action

There are two major cases currently before the Supreme Court that will have implications for affirmative action in education: Students for Fair Admissions Incorporated v. The University of North Carolina and Students for Fair Admissions v. The President and Fellows of Harvard College. Attorney Cameron T. Norris, a lawyer for Students for Fair Admissions, asked the Court to overturn Grutter v. Bollinger, [7] during the oral arguments held last fall. This would have sweeping implications. The Court in Grutter held that affirmative action is constitutional as long as race is just one of many considerations in student admissions, that the goal of affirmative action is to diversify the student body, and that the race of an applicant does not take the place of an individual, comprehensive evaluation of each applicant. Justice Ginsburg, in her concurring opinion, argued that there is no denying that racial bias still persists in this nation, both in education and elsewhere and that it is crucial to implement racial conscious admissions policies to address this bias. The NAACP has submitted an amicus brief arguing that overturning Grutter would prevent continued racial integration in public educational institutions and reinforce racial caste structures. Crucially, the NAACP notes that Brown did not support the petitioner’s interpretation of colorblindness, which would require policymakers to consciously ignore persistent racial inequality. Students for Fair Admissions attempts to rewrite Brown in order to facilitate the de facto resegregation of the University of North Carolina, which is directly at odds with Brown’s stated objectives. Similarly, seeking to re-interpret the Equal Protection Clause of the 14th Amendment as race-neutral in intention is, as Justice Ketanji Brown Jackson has argued, a fundamental misreading.[8] It also poses a real threat to any programs that seek to consider race as a factor in participation and access.

While these cases do not directly impact areas of disadvantaged business enterprise, supplier diversity, and contract compliance programs, there is a strong push to have the Supreme Court revisit its jurisprudence regarding all matters involving race. Assuming the worst-case scenario, that the Court’s determination that any use of racial classifications represents a per se violation of the Equal Protection Clause, precluding goal-setting for minority businesses, there are tools and strategies that remain available for combatting the ongoing effects of marketplace discrimination.

First, there should be a consideration of whether any policies or practices present potential barriers to participation and, second a disparity analysis serves to determine whether the utilization of diverse firms is what should be expected based on the availability of firms in the marketplace. Disparate findings in either of these areas may demonstrate a lack of a competitive marketplace that benefits small and new-to-market businesses of all types, and may further demonstrate an inference of discrimination, still prohibited by Title VI. However, we agree with Justice Ginsburg in Grutter: it remains a necessity to factor for bias in the marketplace and to ensure an equal playing field. There remain racial disparities in government procurement that require correctives, rather than a colorblind approach that hopes the market will eventually correct itself.

So, the question becomes how professionals who work in the space of ensuring equity and justice, respond to these attacks. Each individual issue must be dealt with on its own terms, but it is important to connect the thrust of these national shifts to inform our approach from an administrative standpoint to ensure that the programs that are administered at the state and local level for minority, women, and disadvantaged business enterprises are not eviscerated. We can continue to overcome discriminatory barriers that impede the formation, growth, and mainstream participation of minority and disadvantaged businesses in American commerce in the absence of affirmative action. Attorney Franklin M. Lee, a partner at Tydings & Rosenberg LLP, recommends implementing commercial nondiscrimination policies at the state, local, and municipal levels to “discipline” the market and encourage agencies not to “throw out efforts to recruit and outreach.” Such race-neutral policies prohibit state and local governments from engaging in business with firms that discriminate in their solicitation, selection, or commercial treatment of subcontractors, vendors, suppliers, and commercial customers on the basis of race or gender. Unlike traditional affirmative action public contracting programs, these commercial non-discrimination policies can also reach discriminatory behavior in the private sector of the marketplace that is perpetrated by firms that have been bidding on and awarded government contracts. This, he argues, enables local governments to position BIPOC businesses for success by building more social and business networks, taking advantage of lucrative mainstream economic opportunities, and relying more on these networks to succeed, particularly if affirmative action is ruled unconstitutional by the Supreme Court.

To guarantee that the government is not a passive observer or an active player in private discrimination schemes, we believe the non-discrimination method is essential to document the situations in which minorities and women are being actively discriminated against. We also believe that this examination has an antitrust component. According to the numerous disparity studies that have been conducted over the years, it appears that general contractors, who are predominately white, conspire to keep minorities and women out of the more lucrative opportunities that exist in the various industries in the majority of states. Hence, we recommend looking at how we can attack those situations. New measures should include outreach programs since failing to reach out is essentially inviting discrimination. Governments must maintain contract compliance and supportive services programs. We are anticipating a ruling from the Supreme Court in June that may affect everyone who manages contract compliance programs across the nation. Discrimination based on race, gender, ethnicity, and other immutable characteristics continues to exist. Those who are committed to equity must remain committed to the struggle to ensure that as long as the evil of discrimination menaces American society a way is found, under law, to ensure justice and equal business opportunity.

[1] City of Richmond v. J.A. Croson, 488 U.S. 469 (1989), [2] Dred Scott v. Sanford, 60 U.S. 393 (1857 [3] Plessy v. Ferguson 163 U.S. 537 (1896), [4] Brown v. Board of Education of Topeka 347 U.S. 483 (1954) [5] Dobbs v. Jackson Women’s Health Organization, No.19-1392, 597 U.S. (2022). [6] Roe v. Wade, 410 U.S. 113 (1973), [7] Grutter v. Bollinger, 539 U.S. 306 (2003), [8] Kligor, Ed. October 5, 2022. “Justice Jackson’s Originalist Case for Racial Equality.” New York Magazine. https://nymag.com/intelligencer/2022/10/ketanji-brownjackson-oral-arguments-racial-equality.html