DEI Law: Defining 'Disadvantaged' and the Evolution of Affirmative Action

Origins of Affirmative Action

• 📜 The Civil Rights Act of 1964 was initially intended to be colorblind, with a provision against encouraging quotas or goals.
• 🏛️ President Johnson's Executive Order 11246 established affirmative action with enforcement mechanisms, encouraging federal contractors to set aside businesses for minorities through the Philadelphia Plan.
• ⚖️ The US Supreme Court, in cases like Baky and Weber, later affirmed that race could be considered when establishing benefits and burdens.

Expansion of Racial and Ethnic Categories

• 🌍 Initially focused on race, affirmative action expanded to include people from 'south of the border' and women over time.
• 📊 In the 1970s, the Office of Management and Budget (OMB) issued Directive 15, establishing federal racial categories that are still in use, but these categories can be irrational and exclusionary.
• 🗺️ For example, individuals from Afghanistan or the Middle East are not considered 'Asian,' and people from North Africa are classified as 'white' under federal law.
• 🗣️ The definition of 'Hispanic' primarily includes people from Spanish-speaking countries, leading to complex questions about ancestry and identity.

Self-Identification and Disadvantage

• 🆔 Under current federal law, the determination of disadvantage is largely based on self-identification.
• 💰 This means that an individual's personal identification with a particular race or ethnicity can grant them benefits, regardless of their socioeconomic status, such as a billionaire identifying as disadvantaged due to their ancestry.
• 🏆 A case against the Minority Business Development Agency resulted in a judge ruling that Oprah Winfrey is disadvantaged under federal law.

Critiques of DEI and Disadvantage Definitions

• 🧩 The current approach of defining disadvantage by race or ethnicity is questioned as a method to divide Americans.
• ⚠️ It is argued that disadvantage should be determined by individual need, similar to programs like Medicaid, rather than by assumptions based on skin color or ancestry.
• ⚖️ The speaker suggests that federal law often assumes disadvantage based on race, which is contrasted with systems that assess individual need.