Justice Jackson Just Helped Reset the D.E.I. Debate

Opinion|Justice Jackson Just Helped Reset the D.E.I. Debate

At the heart of the debate over diversity, equity and inclusion is a question: How much should the law treat a person as an individual rather than as a member of a group?

For a very long time, American law and American institutions answered that question unequivocally. People were defined primarily by the group they belonged to, and if they happened to be Black or Native American or a woman, they were going to enjoy fewer rights, fewer privileges and fewer opportunities than the people who belonged to the categories white and male.

That was — and remains — a grievous injustice. At a minimum, justice demands that a nation and its institutions cease and desist from malicious discrimination. But doesn’t justice demand more? Doesn’t it also require that a nation and its institutions actually try to provide assistance to targeted groups to help increase diversity in employment and education and help targeted groups overcome the systemic effects of centuries of discrimination?

On Thursday, the Supreme Court unanimously decided a case that was directly relevant to the latter question, and while the outcome wasn’t surprising, the court’s unanimity — and the identity of the author of the court’s opinion — certainly was.

The facts of the case, Ames v. Ohio, are simple. In 2004, the Ohio Department of Youth Services hired a heterosexual woman named Marlean Ames to work as an executive secretary. By 2019, she’d worked her way up to program administrator and set her sights higher — applying for a management position in the agency’s Office of Quality and Improvement.

The department interviewed Ames for the job but decided to hire someone else, a lesbian. The department then demoted Ames and replaced her with a gay man. Believing she’d been discriminated against on the basis of her sexual orientation, she filed suit under Title VII of the Civil Rights Act of 1964.