The Civil Rights Act of 1964, which gave birth to the concept of diversity, equity, and inclusion, has one foot in the grave.  Since the 1970s, the Civil Rights Act has been under attack because it was unconstitutional and violated the rights of US citizens to equal protection under the laws.   Over the last fifty years, we have seen the opportunities that were afforded to women and minorities dwindled to an almost non-existent state.  At issue is whether the court system is being used as a tool to constrain and restrict opportunities for women and minorities.

History teaches us that the case of Marbury v Madison (1803) set the tone and authorized the US Supreme Court with the power of judicial review to decide whether a law or executive action is constitutional.  Over the years, the US Supreme Court has broadened and narrowed statutes and executive actions to fit its interpretation of the Constitution, a document that, at the time it was created, could not have foreseen the current events that would challenge its applicability.  There’s been a constant battle between and within the three branches of government.  Specifically, the judicial branch reversed itself in the case of Roe v Wade (1973).  The judicial branch reversed itself in the case of Gruffer v Bollinger (2003).  Ironically, neither of these reversals resolved the disputes in its entirety.  Roe v Wade was sent to the individual states to determine, and Gruffer v Bollinger effectively told the schools to find another way.

The Civil Rights Act of 1964 has been under attack for the last fifty years, with reverse discrimination claims that the Civil Rights Act violated equal protection rights under the Constitution.  In the 2003 case of Gruffer v Bollinger, Supreme Court Justice Sandra Day O’Connor wrote in a written opinion that the University of Michigan’s tailored use of race in its admissions decisions to further a compelling interest in obtaining a diverse student body was constitutional and suggested that 25 years from that decision, affirmative action would no longer be necessary.  The court reversed its 2003 decision in the 2023 case of Students for Fair Admissions v Harvard when it found that race-based decisions were discriminatory and that by the year 2028, the use of preferential treatment based on race would no longer be authorized by law.  In effect, the court predicted that discrimination would no longer exist by 2028.

The rulings in these cases were quite optimistic but were unsupported by any data.  Research performed by McKinsey & Co. found that companies with more diversity among their leadership tend to be more innovative and profitable than their less diverse competitors.   The rulings in these cases could impact other aspects of our lives, such as housing, health care, finance, contracting, and employment.  Dissolving the Civil Rights Act could have profound implications for our society.

Women and minorities gained considerable benefits from the Civil Rights Act of 1964.  While not perfect, the act served as an aid to transition from the Jim Crow Era; a dark time in America for minorities.  Perhaps it will no longer be needed by 2028.  But how can we determine whether the   14^th Amendment alone can effectively provide equal protection without the assistance of some pro-active support of some kind?

In a diverse society where everyone feels like a victim, we need to find a way to maintain corporate and institutional diversity, equity, and inclusion.  A more objective manner to determine whether 14^th Amendment rights have been violated is to use census data as a guide.  When a practice does not include the percentage of the population of a specific group or class of individuals, any discrimination claim should be rejected; the
 obvious benefit would be a more robust and more innovative economy.

The Global Innovation Index measures and ranks 132 global economies based on their government, fiscal policies, educational policies, innovation environment, patents, technology, business performance, and economic growth.  In 2023, the United States ranked third, overtaken by Sweden in second place.  The decline in ranking was attributed to 1) a low percentage of graduate students enrolled in science and engineering and 2) a decrease in gross domestic product ( GDP) per capita.  GDP per capita measures its citizens’ living standard and overall well-being.

The global economy has struggled with getting inflation under control.  This has been a residual problem as a result of COVID.  Higher costs can lead to reduced productivity and job losses.  The recent surge in attacks on DEI could be a result of lost opportunities in America.  The diversity of the US population has made everyone a victim.  The bigger question is whether the attacks are racially motivated due to a sense of privilege, economically motivated due to the supply and demand for opportunities, or maybe a little of both.  Share your thoughts and tell us what you think.