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Ending affirmative action in college admissions opened a floodgate, reporter says

TONYA MOSLEY, HOST:

This is FRESH AIR. I'm Tonya Mosley. After Claudine Gay, Harvard's first Black president, recently resigned, conservative activist Chris Rufo posted on X, quote, "this is the beginning of the end for DEI in America's institutions." Rufo was talking about diversity, equity and inclusion, a set of values many corporations and educational institutions deploy to create environments that welcome people of all races, ethnicities, religions, genders, abilities, and sexual orientations. After the murder of George Floyd in 2020, corporate America responded swiftly, pledging billions to DEI initiatives like creating racial justice programs and hiring more people of color. And while Claudine Gay's resignation from Harvard came after accusations of plagiarism and a fallout of her congressional hearing responses to antisemitism, her departure has opened the floodgates for the conservative effort to dismantle DEI.

Julian Mark has been covering Gay's resignation and what he says is a pivotal moment in the movement against DEI in every sector, from academia to corporate America. Mark covers breaking business and technology news for the Washington Post. And, Julian Mark, welcome to FRESH AIR.

JULIAN MARK: Thanks for having me.

MOSLEY: So in response to the plagiarism allegations, Claudine Gay wrote an Op-Ed for The New York Times, and in it she stated that she never misrepresented her research findings and that many scholars have since gone through her work and found a few instances of inadequate citation, but no violation of Harvard's standard of research misconduct. Remind us briefly how these accusations came to light and the pressure put on Harvard's board.

MARK: Well, it really begins with congressional testimony in front of Congress in which Claudine Gay, along with two other university presidents, are testifying about antisemitism on their campuses and protests that are related to the war in Gaza. Many critics said that their answers, when asked whether or not calls for genocide against Jews violated the rules of conduct - many critics said that those answers were overly legalistic and did not adequately denounce calls for violence against Jews.

So there began a very sort of concerted push to have all of those presidents removed. One of them, Liz Magill, was pressured from her post in relatively short order, but with the backing of Harvard's board, Claudine Gay stayed on. And that's when you really felt a major pressure campaign from Wall Street, hedge fund manager Bill Ackman, from conservative activist Chris Rufo, and from others trying to remove Claudine Gay and highlighting allegations that she plagiarized portions of her academic work.

MOSLEY: Right. So in addition to the plagiarism accusations as a way to push her out, there were also threats from donors to withhold billions of dollars to the university. Correct?

MARK: Yeah, there were threats from donors to withhold money. There was pressure from powerful alumni like Bill Ackman, the Wall Street hedge fund manager. So there was financial pressure as well.

MOSLEY: So billionaire hedge fund manager Bill Ackman, as you mentioned - he's a Harvard graduate. He's also a Democrat. He was also calling for the resignation of members of Harvard's board as well.

MARK: I believe so, yes.

MOSLEY: So as Gay wrote in her Op-Ed, her ouster is part of something bigger than her actions. And I want to remind us of how we got to this point. DEI - diversity, equity and inclusion - has been around since the 1960s, but picked up steam around 2020 after the murder of George Floyd. Take us back to that time and how corporations and educational institutions were responding with these promises to increase DEI.

MARK: Well, I mean, it was a very sort of charged time. And this was when, you know, images of Black people being killed at the hands of police were constantly crossing our screens. And the video of Floyd was, I think, a very sort of visceral reminder that there was a problem that needed to be solved. And it wasn't just confined to police. And so corporations, under pressure from activists, started launching campaigns and stating their commitments to DEI, putting money into programs that sort of highlighted, you know, what they said was, you know, anti-Black bias that was within their institutions, installing managers, you know, to oversee hiring and other DEI programs. So it was this huge flashpoint in the effort for racial justice.

MOSLEY: Right. And I want to talk a little bit later about what has come out of those pledges, because there were billions of dollars pledged. But first, I want to fast-forward from 2020, that time period, to June of last year, after the Supreme Court struck down the use of race-conscious college admissions, also known as affirmative action. Can you give us a brief synopsis of the Supreme Court decision involving Harvard and the University of North Carolina at Chapel Hill, involving race-conscious college admissions?

MARK: Yeah. So Edward Blum, who had long been an activist against affirmative action programs, sued the universities. And those lawsuits - they reached the Supreme Court. And the Supreme Court ruled that any sort of racial consideration in admissions violated the 14th Amendment's Equal Protection Clause, which guarantees equal protection under the law from the government. So the Supreme Court's ruling involving Harvard and the University of North Carolina's admissions essentially overturned more than four decades of precedent, allowing for university admissions office to consider race as a factor in a student's admissions.

MOSLEY: What were the ways that ruling actually accelerated this effort to dismantle these DEI efforts?

MARK: Well, I think they're - in a number of ways that you would expect and not expect. The ways that we expect - what we have seen is a sort of chilling effect or a chilling effect on behalf of those who believe in DEI programs being afraid that they might break the law somehow. So we're seeing a little bit of pullback, although, you know, my reporting suggests that, you know, companies are trying to make it work.

But I think that, you know, there still is a commitment, even though it's not as overt as it was in the wake of Floyd's death in 2020. I think where we are seeing some of the most concrete effects is a move towards race neutrality, because I think that in the Harvard decision, you see this principle of, quote-unquote, "colorblindness" that the justices are pushing for, that we can't sort of discriminate for people as well as discriminate against them. And that's not really the way we founded this country. So I think we are seeing that pullback.

I also want to just emphasize that in probably the ways that I am more - was more surprised at the most immediate effects of that decision was how it directly impacted the government contracting world and some of the government's oldest affirmative action programs that set aside contracts - lots and lots of money - for government contractors. And already we saw the SBA's 8(a) program get totally upended. And now the program is not allowed to rely on racial categories. And businesses are having to write narratives actually explicitly spelling out how they've been disadvantaged by society. So then we're seeing that sort of bleed into the government contracting sphere, really see it as a very direct impact. And that's not something that I totally expected.

MOSLEY: You actually, in your reporting, write about the Minority Business Development Agency and calls to dismantle DEI within that agency. We also just saw back in September that a federal court halted a program called the Fearless Fund. Can you say more about what that was and what the ruling actually says?

MARK: Well, the Fearless Fund is an extremely important case. It's maybe one of the more watched cases since the Students for Fair Admissions, the Harvard decision, the one that upended race-conscious admissions at universities. So Edward Blum, the conservative activist behind that Harvard decision, almost immediately turns to the private sector after his big win at Harvard and sues the Fearless Fund, which is a venture capital firm that's focused on investing in Black-female-owned businesses. And he targets a grant program that hands out $20,000 grants to Black-women-owned businesses. And he says that it would be illegal for any venture capital fund to explicitly say we're going to hand out $20,000 grants to only white men, so how can this grant program targeted for Black women be legal?

And so that case has really gathered a lot of steam. Late last year, a panel of judges in the 11th Circuit temporarily enjoined the Fearless Fund from closing its application window and handing out those grants. And now we're awaiting for a more definite decision about whether the Fearless Fund can hand out those grants as the case is litigated in trial court.

MOSLEY: And thinking about some of the things you were surprised about regarding the impact on these efforts to dismantle DEI in the government sphere, one of the topics you've been exploring in your reporting is the government's presumption of racial disadvantage of some groups of people, particularly those who are descendants of American slavery. This takes us all the way back to early civil rights legislation and the interpretation of that. And some conservative groups are taking that and using that as a means to justify why DEI programs should not be in existence. Can you parse that out for us a little bit more?

MARK: Yeah. I do think that there is an interesting distinction between affirmative action and DEI if you sort of look into the history. But, I mean, the presumption of social disadvantage, it really gets formulated under Richard Nixon, who surprisingly, at least in his - early in his administration, is a huge proponent of expanding federal programs for minorities. And in formulating some of these programs, his administrators basically say we are going to help certain groups of minorities get government contracts, programs that set aside certain contracts for construction companies, and those included groups that were sometimes very ill-defined. You know, at that point, there was - saying Spanish-surnamed people, and we saw Eskimos and groups that we may not refer to today but were put in there. And I've spoken to some experts that it was at times sort of a very back-of-the-napkin process, or at least one that was a little political.

MOSLEY: Right. Because, I mean, in thinking about the current push to dismantle DEI, I mean, DEI encompasses everyone. It's racial, gender and disability equity. But race, particularly involving Black people, is what is provoking the most tension at this moment.

MARK: I would say that that's probably true. I think that it also has to do with those who are excluded from the programs also, which oftentimes is white men or, you know, just plain white business owners, and in some cases, Asians. And I think a lot of it, you know, does come down to, well, why is the government, you know, giving others handouts, you know, or giving others preferential treatment while we perhaps get no overt preferential treatment, although I think that, you know, it's a very sort of fine tightrope to walk because I think it's - a lot of the stuff is very thorny. And at least from my reporting, it appears that these programs have sort of engendered grievance from those who have been left out.

MOSLEY: So let's take a short break. If you're just joining us, our guest today is Washington Post business and technology reporter Julian Mark, talking with us about the push by conservative activists to dismantle diversity initiatives within business, government and education. We'll continue our conversation after a short break. This is FRESH AIR.

(SOUNDBITE OF SOLANGE'S "WEARY")

MOSLEY: This is FRESH AIR. I'm Tonya Mosley. And today we're talking to Julian Mark. He's a business and technology reporter for The Washington Post, who has been covering the resignation of Harvard's first Black president, Claudine Gay, amid accusations of plagiarism, and how it's part of a larger effort by conservative activists to dismantle diversity initiatives within business, government and education.

You've been writing about the history of how we got here. In some of your reporting, you start with the Civil Rights Act of 1866. How has that become a critical tool in - for conservatives in this fight to specifically end racial considerations in hiring, for instance?

MARK: I think that this is one of the more fascinating topics because, you know, in embarking on some of this reporting, you sort of dig back into the past, and you look at the development of how the country copes with its ugly past. And I'll just make the point that what we're seeing now with Claudine Gay, some of the arguments that Elon Musk is making on Twitter about DEI being...

MOSLEY: Discriminatory, yeah.

MARK: Yeah, discriminatory and racist. You see those exact same arguments playing out right after Reconstruction - in the creation of one of our founding civil rights laws, in the creation of the Freedmen's Bureau, which essentially gave food and shelter to formerly enslaved African Americans who had just been emancipated. So, for instance, you know, as the Civil Rights Act of 1866, which was aimed at establishing citizenship for the formerly enslaved, after it was passed, President Andrew Johnson vetoed it, saying that it was - essentially discriminated against white people, that it was made to favor, you know, people of color and that it shouldn't go forward for those reasons. So we see that, like, right out the gates, you know, after slavery.

MOSLEY: After President Johnson vetoed the Civil Rights Act of 1866, did Congress override that veto?

MARK: Yes, that's right. Congress overrode Johnson's veto. And it was seen as a pretty radical step in the country's, you know, march towards the future.

MOSLEY: And it should be noted that emancipated enslaved Africans at the time were not seen as people, so they had no civil rights. And so this ambiguity created, I think what you say in your writing, an array of legal disabilities because it left these newly freed people without the right to anything - to marry, to inherit property, to take legal action on anything.

MARK: Right, exactly. I mean, it was - during slavery, African Americans were treated as property. There was a whole network of laws that formed the economy around them not being people. And so after slavery was outlawed, the Civil Rights Act of 1866 was a way to essentially endow African Americans with citizenship, giving them the same rights, as the law states, as white citizens. So, to answer your question, you know, fast-forwarding a century and a half, we are now seeing this law being redeployed to essentially take down any vestige of affirmative action, and I think more accurately, affirmative action and any program that is sort of race-conscious, that funnels resources or any sort of preferential treatment to any particular minority.

MOSLEY: Some critics, though, are saying these lawsuits are distorting the intent of the 1866 law.

MARK: Yeah, that's right. You know, I think that there are some who say that this is a total perversion of the law's intent, which was meant to essentially give formerly enslaved African descendants citizenship rights, citizenship rights that were equal to those of white citizens, as the statute states. I will note that legally this law has transformed a great deal between the time that it was framed and to its current use now, and it was actually civil rights legend Thurgood Marshall that ruled in 1970 that the law actually should apply to all citizens and not just Black people. And that's the interpretation now that sort of allows this law to be used in more of a so-called reverse discrimination context.

MOSLEY: At the core of this argument is basically whether certain racial and ethnic groups are inherently disadvantaged in our society, you know, and then therefore entitled to preferential treatment. So in the case of race, at its core, it really is an argument about whether systemic racism exists.

MARK: I think so, and I think that this is at the core of it. And this is at the core of the debate. I think you have proponents of these programs saying that we have numbers showing that African American business has not blossomed yet and, you know, has not seen a sufficient wealth and sufficient participation in the economy, and these programs are needed now more than ever. And then you have activists and politicians who are challenging the program, saying, you know, how long do you need? Enough is enough. You know, we've had time and we shouldn't try to end discrimination by discriminating. So I think, you know, you really have this clash and in some ways just this sort of parallel worldview about how the country should proceed.

MOSLEY: Let's take a short break. If you're just joining us, our guest today is Washington Post business and technology reporter Julian Mark, talking with us about the push by conservative activists to dismantle diversity initiatives within business, government and education. We'll continue our conversation after a short break. I'm Tonya Mosley and this is FRESH AIR.

(SOUNDBITE OF ART FARMER'S "ISFAHAN")

MOSLEY: This is FRESH AIR. I'm Tonya Mosley, and today, we're talking to Julian Mark. He's a business and technology reporter for The Washington Post who has been covering the resignation of Harvard's first Black president, Claudine Gay, amid accusations of plagiarism and how it's part of a larger effort by conservative activists to dismantle diversity initiatives within business, government and education.

Who are the major drivers of the dismantling of DEI? Can you give us a scope of the size of this movement?

MARK: I would say it's a movement that involves dozens of lawsuits with various groups that are all sort of heading towards the same purpose, which is to take out specific considerations, whether they're racial considerations or considerations of women or LGBTQ people. So some of the main players in this are, of course, Edward Blum, who was behind the big case involving Harvard and race-conscious admissions. There's also Stephen Miller, a former advisor to President Donald Trump, whose America First Legal is filing dozens of complaints that companies are violating - essentially discriminating on the basis of race by having set-asides or having programs that are targeted towards specific groups.

There's also a - you know, a Wisconsin legal nonprofit that has launched some very successful lawsuits against some federal programs for minorities. So we do see a very robust, legal offensive against these programs. You know, that's not to mention some of the more public-facing campaigns, such as the Claudine Gay incident. We see Chris Rufo, you know, a fellow at the Manhattan Institute who was also behind the push to extinguish the teaching of race in K-through-12 classrooms, getting behind this push to oust Claudine Gay, which was a very sort of public, galvanizing event, you know, in the push to rid the world of DEI. I would say that the momentum in various campaigns sort of builds upon itself. And right now, I think we're seeing it cresting.

MOSLEY: Legislatively, we also know about Florida Governor Ron DeSantis' efforts. He's basically barred spending on DEI at public colleges and universities in his state. What are we seeing in other states?

MARK: So seven states have adopted some kind of measure to essentially ban DEI on public college campuses. And most recently, that has included the governor of Oklahoma signing an executive order essentially directing the state universities not to spend any funds for DEI at public universities.

MOSLEY: Julian, I want to talk a little bit more about the growth of DEI over the last few years because we went to 2020 where we remembered that corporations were pledging billions of dollars to DEI efforts. What kinds of changes were they pledging?

MARK: I'll be honest, I think that they were pledging money towards this, but a lot of it was to show support. What I want to highlight is that DEI diversity drives for equal opportunity have been slowly percolating in corporate America since the 1960s and the '70s, and that the recent push in 2020, I think there might have been more money put towards those programs, and I think that there might have been a separate focus. I spoke to somebody yesterday who said that the - you know, the real change was looking more at anti-Black bias within companies. But I do think that a lot of these systems were put in place in the affirmative action era and sort of evolved from there.

MOSLEY: What types of changes were they pledging, and then what came out of those promises?

MARK: I wouldn't say that there was a whole lot. I think the most visible changes that you saw were the insertion of DEI people in the C-suite that managed diversity. And I think that that was a really big, you know, sort of show of commitment. More commitment to diverse hiring, you know, anti-bias training in which employees were sort of sat down and reminded of the history of the country and reminded that we all harbor our implicit biases...

MOSLEY: And that implicit...

MARK: ...You know...

MOSLEY: ...Bias training has come under fire, too, on whether or not it has been effective over time.

MARK: Yeah. Yes. You know, I think there have been critics that say implicit bias training has done little more than just to alienate employees.

MOSLEY: Can you give us a scope of what DEI looks like? Because the right paints the picture of unqualified people being awarded jobs and grants solely based on race or gender, discriminating against others, as you said earlier, namely white men.

MARK: Yeah. I mean, DEI is kind of one of those terms. It's an umbrella term, and it's also a term that, you know, shows up in public discourse. And, you know, it's a loosely defined term that generally refers to any sort of program that diversifies an organization that brings in more minorities and LGBT people and women, and also has programs that, you know, help them to feel included and sort of foster their growth up the chain. So what those programs could look like are, well, for hiring, we're going to consider, I don't know, 30% of our candidate slate, you know, has to be either women or minorities. And we have to at least consider them for the job before we move forward.

And it also refers to groups that help those who might not have the tools to sort of navigate a more white and male workforce mentorships to help them move up and, you know, get promotions and make connections. So this is what DEI is supposed to do. And there's also, you know, implicit bias training. And that's what it looks like.

MOSLEY: So what has been the impact of these DEI efforts? Has there been a growth in diversity numbers? I'm thinking about sectors like law and Fortune 500 companies.

MARK: Yeah. You know, unfortunately, we have not seen a tremendous amount of progress. Fortune 500 companies have only eight Black CEOs heading them. And when it comes to law firms, I believe the number is about 5 to 6% of lawyers are Black lawyers. So there hasn't been a tremendous amount of progress. But, you know, some would argue that the programs have not had enough time to set in or maybe just need to be revised to show better progress. But I think the jury might be out on that one.

MOSLEY: You know, I was reading from someone who works in the DEI space that one issue internally that has fueled dissent within companies over DEI policies is this lack of room for good faith question. So questions like if we set diversity goals, does that mean we're discriminating against everyone else? Is this a challenge that you've heard about in your reporting?

MARK: Yes. I mean, absolutely. I feel that this sort of goes to the heart of these policies that have been around since the '60s - you know, people sort of feeling alienated by policies that are not necessarily meant for them, even though, in some ways, they are. And I think that, you know, maybe one shift that you're seeing is, you know, there's a little bit of change in verbiage such as, you know, instead of inclusion - you know, that we're including others in this group - to one of, you know, quote-unquote, "belonging." So I think you're seeing maybe some adjustments in that, trying to create programs that are not necessarily targeted at a specific group but that are neutral - you know, group-neutral - and seek to make everybody feel that they're a part of the effort.

MOSLEY: What are you following next as you report on this larger effort to dismantle DEI?

MARK: What we're looking at is the Supreme Court's decision in June that essentially upended race-conscious admissions. You're seeing that set the tone of colorblindness and race neutrality as a guiding principle for how we need to fashion our institutions. And that's a huge shift from the paradigm that we have been in since the civil rights era. And so what I'm looking for is essentially those programs, if not going extinct, then changing dramatically. I think that what we should also be looking out for is the newer, what we now call DEI - sort of a newer incarnation of this idea that we need to be giving people a little bit of extra help to better participate in the economy.

I think that we might be seeing ever-sophisticated ways that we can give people a leg up - historically disadvantaged folks a leg up - without resorting to programs that might sort of butt up against the Constitution or, you know, whose constitutionality could be easily questioned. So those are the things that I think I'm looking out for. And just even speaking to some consultants, you know, following the Claudine Gay incident, I think we're going to see an energized proponents and opponents on both sides looking to either further take down DEI initiatives or further protect them.

MOSLEY: Julian Mark, thank you for this conversation.

MARK: No problem. Thanks for having me.

MOSLEY: Julian Mark is a business and technology reporter for The Washington Post. Coming up, David Bianculli reviews a new detective series. This is FRESH AIR.

(SOUNDBITE OF LOS SUPER SEVEN'S "CALLE DIECISEIS") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Tonya Mosley is the LA-based co-host of Here & Now, a midday radio show co-produced by NPR and WBUR. She's also the host of the podcast Truth Be Told.