The Supreme Court Seems Ready to Give the Resegregationists What They Want

How the justices’ decision in Ames could supercharge the anti-DEI backlash.

The Supreme Court heard oral argument this week in Ames v. Ohio Department of Youth Services, a case about what majority-group plaintiffs in employment discrimination cases—here, a woman who says she was discriminated against because she is heterosexual—need to prove to get their day in court. Based on how the morning went, the sharp money is on Marlean Ames winning easily, and maybe unanimously: All the justices, it seems, believe that the law in its majestic equality must protect gay and straight Americans alike from the evils of sexual orientation discrimination in the workplace. “We’re in radical agreement today on that, it seems,” said Justice Neil Gorsuch at one point, summarizing the mood; the laughter that followed suggested that no one in the room felt any different.

This result would be a thrilling victory for Marlean Ames, of course, and for the Supreme Court Litigation Clinic at the University of Virginia School of Law, which is representing her for free. It would also be cause for celebration at America First Legal, the Stephen Miller-led outfit that pitches itself as “leading the charge against racism targeting white straight men in America.” In an amicus brief filed in support of Ames, America First Legal asserts that these days, employers who have become “obsessed with DEI” are “often” using diversity as a “code word” to discriminate against majority groups, and that only the Court’s timely intervention can stop these injustices from piling up further.

Also among Ames’s supporters is the American Alliance For Equal Rights, which argues that “anti-white and anti-Asian discrimination is quite common in modern America,” and that institutions of all kinds are “discriminating against some races in the name of ‘diversity.’” The Pacific Legal Foundation, too, says that discrimination against members of majority groups is now “just as likely” as discrimination against minorities, thanks to DEI programs that “mandate intentional discrimination” that “pervades the modern workplace.” (Pacific Legal also warns that “critical race and gender theory infect DEI programs,” presumably to ensure that Sam Alito does not miss an opportunity to grouse about these things in a concurring opinion at least.)

(Photo by Win McNamee/Getty Images)

Perhaps the most strident brief comes from Josh Young, who has sued his former employer, the Colorado Department of Corrections, for allegedly discriminating against him on the basis of his race. The thrust of his complaint, as his lawyers at a conservative nonprofit describe it to the Court, is that he, a white guy, was—you guessed it—“required to undergo and personally adopt the principles of aggressive ‘Equity, Diversity, and Inclusion Training.’” Young’s brief urges the Court to eschew “judicial minimalism” when resolving Ames, and to “issue a broad and robust opinion” that affirms the Constitution’s commitment to a “color-blind judicial system.”

In his filings, Young concedes that all of his colleagues—not just white people, and certainly not just Young—went through the training, which consisted of having to sit through “several computer modules.” But for the conservative legal movement, the indignity a white person endures while half-watching a series of badly-acted training videos is morally and legally equivalent to the indignity a Black person endures when they get fired because the new boss doesn’t think people who look like them should ever have been hired in the first place.

On Wednesday, Ames’s lawyer, Professor Xiao Wang, repeatedly framed the question before the Court as “narrow.” In a sense, he is right: The fate of a circuit split regarding the requirements of the “unusual employer” test at the prima facie stage of the McDonnell-Douglas burden-shifting framework when used in Title VII complaints brought by majority-group plaintiffs is the sort of thing that prompts even lawyers to tune out halfway through the sentence. 

But no Supreme Court case gets resolved in a vacuum. Right now, this country is in the midst of a reactionary counterrevolution in which activists are hounding anything that resembles “diversity” out of corporate boardrooms, university classrooms, public schools, government agencies, even big-box store shelves and mediocre coffee chains. A decision in Marlean Ames’s favor would tacitly endorse the narrative that “diversity” is discrimination by another name, and further embolden activists to challenge the premises of civil rights laws while conditions are favorable for doing so. 

Perhaps most perniciously, it would force employers to think twice about ever hiring or promoting minority candidates, fearful of inviting a tut-tutting demand letter from a disgruntled white applicant reminding them that, as the Supreme Court said in Ames, discrimination is wrong no matter who is victimized by it. If you are a manager, at some point, there is a pretty strong incentive to decide that hiring people of color is simply not worth the trouble anymore, thus flipping the purpose of Title VII on its head: Six decades later, a law that Congress passed to desegregate the American workplace is a tool of an ideological movement that aspires to quietly resegregate it.

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