Abstract
Excerpted From: Tanya Katerí Hernández, Can CRT Save DEI?: Workplace Diversity, Equity & Inclusion in the Shadow of Anti-Affirmative Action, 71 UCLA Law Review Discourse 282 (2024) (201 Footnotes) (Full Document)
Just four years after the nation's summer of 2020 protests--sparked by the murder of George Floyd--culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are now enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this recent wave of advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court's recent decision in Students for Fair Admissions v. Harvard, which greatly narrows the constitutional grounds for race-based affirmative action by questioning the coherence of diversity as a goal for race-conscious, inclusive university admissions policies. As a result, corporate actors are apprehensive about the continued viability of their multibillion-dollar investment in workplace DEI trainings.
Given the significant role of DEI training as a remedy for antidiscrimination law violations, it is important for legal scholars to analyze the animating factors of the legal movement to outlaw workplace DEI trainings. Unfortunately, worker frustration with individual bias-focused DEI trainings has dovetailed with the inaccurate depiction of CRT espoused by anti-CRT activists, threatening the pursuit of racial equality. This Article explores a counterintuitive path forward: a wholesale shift to CRT-framed trainings as a defense against DEI. It is an effort inspired by the racial justice activists who CRT theorist Mari J. Matsuda describes as “ahead of their time, in thinking they could run a freedom train in the darkest hour of slavery.”
Part I of the Article details how the use of the CRT label has come to be weaponized against workplace DEI initiatives. Part II situates the historical importance of DEI trainings within antidiscrimination law. Part III then assesses how contemporary DEI trainings, as influenced by anti-affirmative action jurisprudence, have implemented a constrained vision of equality. Part IV examines the individual bias-focused content of widely used DEI trainings and the employee dissatisfaction this structure of DEI trainings generates. Part V concludes the Article's analysis of DEI training with a set of evidence-based models for implementing CRT-informed DEI initiatives.
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This Article's proposal for the expansion of DEI CRT inspired approaches may seem incongruous during a time when CRT itself is under attack in legislatures and the public discourse. Nonetheless, the entire history of civil rights is one in which inauspicious conditions and outright losses have been transmuted into human rights advances. Consider that at the time the 1978 Bakke decision banned race-based quotas in college admissions, the civil rights community understood the decision as a significant loss. Explicit numerical quotas had provided the most direct way to hold an institution accountable.
After the Bakke decision, the unwavering commitment to the pursuit of racial equality inspired racial justice lawyers and activists “to make a way out of no way.” That work transformed Bakke and other workplace-related court decisions barring direct racial quotas, into a metamorphosis of “diversity” as a tool for racial inclusion. Now we need to confront the Supreme Court's evisceration of diversity as well. Still, as CRT luminary Patricia J. Williams has said about Black civil rights warriors, “blacks believed in [rights] so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them.” With that ancestral history, it is not necessarily illogical to seek to transfigure the public spotlight of the attack on CRT into the very source for saving workplace DEI. In the past, “the making of something out of nothing took immense alchemical fire,” and such a fire can be set again.
Archibald R. Murray Professor of Law, Associate Director of Center on Race, Law & Justice, Fordham University School of Law. © Tanya Katerí Hernández
