An irresponsible and wrongheaded op-ed on racial preferences by Illinois Attorney General Kwame Raoul – Wirepoints

By: Mark Glennon*

Illinois Attorney General Kwame Raoul published an op-ed last week in Crain’s ridiculing the view that the U.S. Supreme Court’s ruling on racial preferences has implications for the private sector. His message to the private sector was essentially to keep doing what it has been doing on diversity, equity and inclusion, and to disregard the Court’s decision.

Raoul’s op-ed is irresponsible and dead wrong according to the overwhelming weight of opinion in countless assessments and warnings by lawyers in the field and reporters who have interviewed legal experts. The private sector would be wise not to rely on Raoul’s advice, which borders on legal malpractice. The op-ed was also racially incendiary, essentially ascribing racism to state attorneys general with a different view. Instead of thumbing his nose at the Court’s decision, Raoul should be enforcing it, as is his sworn duty.

Here is the background and a summary of how the Court’s decision has been widely interpreted to mean that Raoul is wrong:

The Supreme Court last month issued its decision in what’s called the SFFA case,  Students for Fair Admissions Inc. v. President and Fellows of Harvard College. It ruled that racial preference in admissions to Harvard and the University of North Carolina violated the Constitution’s Equal Protection Clause. Affirmative action based specifically on race is now all but banned in virtually all college admissions.

Technically, the SFFA decision itself was specifically about racial preferences by government units. The universities that lost were treated as government entities because they get federal money and because of Title VI, which links their obligations to the Equal Protection Clause.

That’s why Raoul wants you to think the private sector can ignore the SFFA decision – and that it’s “ludicrous” to think otherwise. Raoul says the suggestion in a letter written by 13 Republican attorney’s general “that a private employer’s diversity and inclusion program may constitute discrimination is, in a word, ludicrous.” “To be clear,” Raoul wrote, the SFFA decision “does not directly address or govern the behavior or initiatives of private businesses.”

But it’s Raoul’s position that is ludicrous — according to the torrent of warnings about SFFA’s likely impact on the private sector. Here are just a few of countless examples from prominent law firms and media summaries of their reaction:

• The SFFA decision along with related developments “signal an increasingly fraught environment for employers – and heightened legal risk,” according to the DLA Piper law firm. “Accordingly, employers are encouraged to consider steps to mitigate risk and reinforce existing obligations under anti-discrimination laws.”

• “On its face, the [SFFA] decision does not directly concern employment, wrote the McGuireWoods law firm. “However, the Supreme Court relied expressly on case law concerning race in employment to reach its decision in SFFA. And the SFFA decision’s holdings and language will have broader implications for corporate hiring practices, affirmative action for government contractors and other diversity, equity and inclusion (DEI) initiatives — and those effects may be felt sooner rather than later.”

• The letter by Republican attorney’s general that Raoul mocked, according to the Gibson Dunn law firm, “serves as an important reminder that employers should carefully evaluate whether any of their diversity and inclusion policies could face additional scrutiny or threats of litigation.”

• Corporate diversity is “in the crosshairs,” said a Financial Times headline. It quoted a Morgan Lewis partner who said “organizations should examine their employment, supplier diversity and charitable giving strategies to minimize legal and reputational risks” and a former US acting solicitor general who predicted “fights in the corporate setting.”

• Implications for the private sector raise risks even for one company buying another, wrote the BakerHostetler law firm in JD Supra, because acquirers may be buying into liability for reverse discrimination by the companies they buy that went too far.
• “The removal of race as a factor in college admissions stands to change the pipeline of diverse graduates companies can hire and likely opens challenges to longstanding hiring and promotion practices, legal experts say,” reported the Wall Street Journal. “To avoid liability, companies should closely examine their DEI policies,” said another Journal article.

• Even the left’s New York Times warned of “turmoil ahead for diversity in hiring.” The effects of the SFFA decision, it wrote, “which found that race-conscious admissions programs were unlawful, promise to go much wider. Many in corporate America fear that years of efforts to promote diversity are now vulnerable to legal challenges. While this particular case may not upend such initiatives, lawyers and executives say, future ones that go before the Supreme Court could.”

Raoul, however, tells you none of that. If he were honest about providing useful legal advice for the private sector about the SFFA decision, he would have explained that some diversity efforts remain permissible. Extra recruitment efforts, for example, are fine, but direct racial discrimination is not, under SFFA.

That’s what’s in a letter signed by 21 Democratic attorneys general, including Raoul, sent as a retort to the Republican letter to support their position on what the private sector can and cannot do. The Democratic letter, like the Republican letter contains some exaggeration and hyperbole, though both end up pointing out that some types of diversity efforts are safe from legal challenge. Raoul’s op-ed, however, ignores that distinction, taking it far beyond the Democrats letter by categorically calling for the SFFA decision to be ignored by the private sector.

There’s more that’s wrong with Raoul’s op-ed.

Much of it is devoted to what’s basically an effort to re-litigate the SFFA decision, attempting to discredit it by explaining why racial preferences are fair and just. Think what you want about the Court’s decision, but it’s now the law, and it’s supposed to be Raoul’s job to enforce it.

Raoul’s op-ed says, “I believe it is quite telling that 38 attorneys general — from both parties — did not sign the spurious [Republican] letter in question.” So what? Is that how Illinois’ top legal official reasons? Just 23 signed the Democratic letter. And if arguments like that are supposed to make any difference, he might have noted that Americans overwhelmingly support the SFFA Decision.

Finally, there’s plenty in Raoul’s op-ed, as you’d expect, saying effectively that his opponents are racist. “Even a cursory reading reveals the Republican letter to be nothing more than a thinly veiled attack that, in fact, attempts to undermine efforts to reduce racial inequities in corporate America,” he wrote. “It resonated as a furtive but validating wink to return to discriminatory practices that denied economic opportunities to African Americans.”

Inflammatory racialism like that should have no place in any attorney general’s office.

Instead of attacking the Supreme Court’s decision and irresponsibly telling the private sector to ignore it, Raoul should be enforcing it. Any number of provisions governing state and local government calling for racial discrimination are now directly illegal under SFFA, as we wrote earlier.

While we can be sure Raoul won’t enforce the law under SFFA, there will be no stopping private litigants, who don’t need state attorneys general for lawsuits.

As you in the private sector assess the impact of SFFA, rely on a better lawyer than Kwame Raoul.

*Mark Glennon is founder of Wirepoints.