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[Crucially, the court didn’t rule that Ames had been discriminated against. Instead, it sent the case back down to the lower court to be decided under the proper, equal standard.

Standing alone, the Ames case is relatively narrow in scope. It only holds that all employment discrimination plaintiffs have to meet the same test. Taken together with the court’s other recent cases, including most notably 2023’s Students for Fair Admissions v. Harvard, which prohibits race preferences in university admissions, the lesson is plain: Any discrimination rooted in immutable characteristics, such as race, sex or sexual orientation, will automatically be legally suspect, regardless of whether the motivation for discrimination was malign or benign.

I don’t want to overstate the degree of judicial consensus here. Jackson was in the majority in the Ames case but dissented from the court’s Harvard ruling, as did the court’s two other liberals, Justices Elena Kagan and Sonia Sotomayor. But the cumulative effect of all the court’s precedents — unanimous and otherwise — is still quite clear.

As a result, much of the political and cultural debate around efforts to increase diversity, equity and inclusion has been decided by the courts. The precedent is settling around a statement by Chief Justice John Roberts in a 2007 case called Parents Involved in Community Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But if the law is going to require individualized decisions, does that eliminate the possibility of systemic change? Does it leave minority groups permanently behind?

No, it does not. The Ames decision didn’t raise the bar for nondiscrimination cases. It just placed everyone in the same legal position. And as Justice Clarence Thomas wrote in his concurring opinion in the Harvard case, schools may grant “an admissions preference to identified victims of discrimination.” It can also take into account their individual struggles with, say, income or health.]


Link: https://www.nytimes.com/2025/06/08/opinion/supreme-court-dei-racism-jackson.html?smid=nytcore-ios-share&referringSource=articleShare