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Affirmative Action on the Defensive in Early 2022

Major political and legal events already taking place this year have signaled that 2022 could be a very mixed bag for affirmative action at the national level. The idea that groups that have been historically discriminated against should be treated preferentially in hiring and other placements is likely to suffer.

Biden’s First Supreme Court Pick

First, a positive development for supporters of affirmative action. In the wake of Supreme Court Justice Stephen Breyer’s announcement that he will retire from his seat on the Court, President Joe Biden vowed to remain faithful to a campaign pledge to place the first Black woman on the nation’s highest court. While nominations to the Supreme Court are not in the same ballpark as things like state and federal employment laws or college admissions, the idea that an appointment to the Court can or should be based so heavily on past discrimination is a powerful symbolic message of the continued relevance of affirmative action.

Of course, there has been strong opposition to Biden’s pledge from some corners. Opponents of Biden’s promise argue that it goes beyond simply giving favorable consideration to a particular group and explicitly discriminates against everyone not in that group. U.S. Senator Ted Cruz, on his podcast Verdict with Ted Cruz, is a notable example: “The fact that he’s willing to make a promise at the outset, that it must be a Black woman, I got to say that’s offensive,” said Cruz. “You know, Black women are what, 6 percent of the U.S. population? He’s saying to 94 percent of Americans, ‘I don’t give a damn about you, you are ineligible.”

Affirmative Action in College Admissions

The other major news story around affirmative action is much broader in scope and focuses on higher education. For years, it has been taken for granted that college admissions staff consider applicants’ race—among many other factors—as part of its admissions criteria, the explicit goal being to account for the present impacts of past discrimination in order to provide a more diverse and holistic learning environment for all students.

That policy now faces its most serious threat in decades in a case before the same Supreme Court that will see its first Black female justice if Biden has his way. “Opponents of affirmative action in university admissions couldn’t possibly have had better news than the Supreme Court’s announcement, on Monday [January 24, 2022], that it will hear two cases organized by Edward Blum, the anti-affirmative-action crusader,” writes Nicholas Lemann in an article for the New Yorker. “The message is clear,” he says later in the article, “the Supreme Court wants to consider decisively departing from a long string of decisions that have permitted the use of race as a plus factor in admissions.”

The elimination of affirmative action in higher education could have important implications for diversity in those environments. However, opponents of those policies would argue that they are themselves a form of discrimination and have outlived their usefulness.

Affirmative action has long been an accepted aspect of many areas of American life. Americans take for granted that certain institutions consider race and gender as appropriate acceptance criteria in some spheres. Yet the fundamental debate over the appropriateness, effectiveness and fairness of affirmative action continues, and January’s high-profile developments are a reminder of how raw that debate still is.

It’s challenging for institutions and businesses of all kinds to find the right balance of inclusion. Sometimes that balance must be tipped in favor of those who have been historically marginalized. All else being equal, when it’s possible to err on the side of a historically marginalized candidate for any role, why not do so—especially when these diverse candidates reflect your market? As we all know, most businesses today serve markets that are increasingly diverse. They should be too. Be inclusive!

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Are you tired of workplace diversity training that does not link to business? Are you tired of tactics that don’t drive business results? InclusionINC has inclusion and strategic consulting that link inclusion to employee engagement, productivity, innovation and retention, moving inclusion beyond tactics to a critical business strategy.


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