Commentary: SCOTUS’ Decision on Affirmative Action Could Spell Big Trouble for ESG’s

by Robert Romano

It’s a simple ruling: “Eliminating racial discrimination means eliminating all of it.”

On June 29, the Supreme Court affirmed Title VI of the Civil Rights Act, 42 U.S. Code § 2000d’s prohibition on racial discrimination in federally funded programs, including higher education, at both public and private universities, in the Students for Fair Admissions v. Harvard decision.

The law itself is clear: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

And that’s exactly what Harvard College and the University of North Carolina (UNC) — and colleges and universities across the country — have been doing for decades by offering racial preferences in school admissions to hit quotas. The formulas used in these cases discriminated on their face against white and Asian students.

Nobody disputed that Harvard and UNC were receiving federal funding. Nobody challenged that Title VI applied to the funding. Nobody contested that it disadvantaged certain students on the basis of race.

And nobody disputed Congress’ authority to enact Title VI under a clear mandate in the 14th Amendment in Section 1 that “No state… deny to any person within its jurisdiction the equal protection of the laws” and Section 5 that “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” and that Article I of the Constitution grants Congress the power of the purse to determine the terms and conditions for receipt of federal funds.

With such clear provisions of law, how could the court rule any other way? In Chief Justice John Roberts’ words, it was only through judicial “improvisation” that an altogether different interpretation of the 14th Amendment included precedents that have now been struck down, including 1978’s California v. Bakke, which had held that federally funded institutions could discriminate on the basis of race if the intent was to advantage groups that had been historically discriminated against. No more.

And so, now the court is returning to an original understanding of the provisions of the 14th Amendment as a measure of equal protection — and with equal meaning equal. No discrimination on any side, restoring what was the law of the land all along and in so doing, have provided the means to countering other discriminatory practices that have come out this era of “judicial improvisation.”

Undoubtedly that will come to include radical corporations’ discriminatory and racist hiring practices, which, just like college admissions, seek to redress historical racial injustices.

In short, if racial preferences in college admissions are unconstitutional under 14th Amendment equal protection, then so are those by corporations today via their “diversity, equity and inclusion” racial and gender hiring quotas, one of the cornerstones of the Environmental, Social and Governance (ESG) investment model that seeks not profit, per se, but through ownership of companies to impose certain social agendas.

Today, the question of reverse discrimination posed by ESG’s Diversity & Inclusion corporate policies might be decided differently by today’s Supreme Court more than 40 years later. It would be up to those fired or cancelled to make the case they were discriminated against on the basis of race and/or sex.

As it is, corporate America’s racial and gender diversity preferences in favor of women and minorities, including at America’s biggest entertainment companies absolutely “discriminate[s] … because of such individual’s race, color, religion, sex, or national origin.”

Just look at media and the entertainment industry.

AT&T first included D&I objectives in Sept. 2018 after its then-merger with Time Warner (it has since divested WarnerMedia to Discovery) was completed. In its 2018 report, AT&T’s then-CEO Randall Stephenson announced the company’s new Diversity & Inclusion Policy, “I am proud of our commitment to a diverse and inclusive workforce. WarnerMedia’s new Diversity & Inclusion Policy, announced in September, is a pioneering media industry commitment to give more opportunities to women, people of color and individuals from other underrepresented groups – both in front of and behind the camera.”

As for the other companies, Disney, which owns Marvel Comics, states in its 2020 report, “Diversity and inclusion (D&I). Our [Diversity & Inclusion] D&I objectives are to build teams that reflect the life experiences of our audiences, while employing and supporting a diverse array of voices in our creative and production content. Established six pillars that serve as the foundation for our D&I commitments – transparency, accountability, representation, content, community, and culture. Created a pipeline of next-generation creative executives from underrepresented backgrounds through programs such as the Executive Incubator, Creative Talent Development and Inclusion (CTDI), and the Disney Launchpad: Shorts Incubator. Championed targeted development programs for underrepresented talent. Hosted a series of culture-changing, innovation and learning opportunities to spark dialogue among employees, leaders, Disney talent and external experts. Sponsored over 70 employee-led Business Employee Resource Groups (BERGs) that represent and support the diverse communities that make up our workforce. The BERGs facilitate networking and connections with peers, outreach and mentoring, leadership and skill development and cross-cultural business.”

Mattel, which owns properties like He-Man, in its 2020 report stated its Diversity & Inclusion commitments: “As a purpose-driven company, we have raised the bar on our commitment to corporate citizenship… Diversity, Equality and Inclusion (“DEI”) is another key priority for Mattel, and we are building on our long heritage in this important area by continuing to advance our DEI efforts across the Company and representing diversity and inclusivity in our products.”

Discovery, which will control WarnerMedia including DC Comics in 2022, in its 2020 report announced its own Diversity & Inclusion objectives: “Our DE&I objective is to foster a culture of equity, inclusion, and mutual respect. In 2020 we emphasized our DE&I focus through Mosaic – our Diversity, Equity and Inclusion activation. Mosaic covers a range of initiatives, including: Unconscious Bias, Respect & Integrity; Allyship; Recruitment and Career Development; Content Diversity; Supplier Diversity; and Social Impact. We sponsor over 30 chapters of Employee Resource Groups (“ERGs”) across the globe with more than 2,500 members. ERGs draw upon their collection of unique experiences to help drive our mission of fostering a diverse and inclusive environment and provide important insights to our diversity, equity and inclusion initiatives… We have a department dedicated to social good that builds and oversees consumer and employee-facing initiatives and campaigns. We leverage our platforms, resources, and employee base to make an impact in our communities and with our key nonprofit partners. We have corporate partnerships aimed at addressing childhood hunger, racial injustice and wildlife preservation.”

And Hasbro in its 2020 report announced explicit racial and gender hiring quotas: “Diversity & Inclusion Goals: Increase the percentage of women in director and above roles globally to 50 percent by 2025. Expand ethnically and racially diverse employee representation in the U.S. to 25 percent by 2025. Include a 50 percent diverse slate of candidates for all open U.S. positions where there is underrepresentation.”

From a personnel point of view, when big mergers happen alongside the institution of Diversity & Inclusion policies, while, male, conservative Republicans are purged if they dare speak up. Or maybe the work just dries up.

And it’s not isolated to just the entertainment industry. It’s across the board. A March 2021 ESG Report by Pfizer set 2025 “opportunity parity goals” including “increasing our minority representation from 19 percent to 32 percent and doubling the underrepresented population of African Americans/Blacks and Hispanics/Latinos.” Those are racial hiring quotas.

But Diversity & Inclusion goals go even further than just violating Title VII of the Civil Rights Act.

It impacts social media, too. For example, prior to the purchase of Twitter by Elon Musk, and flush with billions of dollars of capital from ESG investing, social media platforms like Twitter have pursued aggressive Diversity & Inclusion and other politically charged objectives, including censorship.

Diversity hiring quotas like these appear to squarely run afoul of the 1964 Civil Rights Act’s prohibition…