David Heinemeier Hansson

June 30, 2023

The law of the land

Affirmative action is right up there with abortion and gun control among the highest-profile, longest-running social fissures in America. So of course the recent ruling from the Supreme Court making its use in college admissions illegal was going to light a political fire. The surprising thing is just how contained the burn has been within the tech industry.

But perhaps it shouldn't be so surprising. As I argued last year, we're now in the waning days of DEI's dominance within the corporate world in general and tech in particular. I don't know exactly when future historians will pin the peak, but it'll be sometime in that 2020-2021 period. The only thing that's clear today is that things have calmed down considerably since the ideological crusade reigned supreme.


It really was a crazy time. And I think we're only beginning to appreciate just how bananas it was. Like I can imagine Americans coming out of the 1950s Red Scare must have felt. But the fact that it's undeniably a different time already was illustrated when Facebook banned many forms of political discussions inside their company late last year, and basically nobody gave a damn.

But let's not forget that it isn't over everywhere yet. It's just waning rapidly within the corporate world. As Heather Mac Donald has documented in When Race Trumps Merit, institutions within academia, the arts, and even branches of science are still in the throes of this ideology, with disastrous effects.

Such are the swings of the pendulum. It's not everywhere all at once. The turn will always happen faster in some circles than others. I'm just glad the turn has happened within tech first.

Correcting past injustices with present-day discrimination was never going to be a long-term stable project. You just can't get a majority of Americans to stick with a premise that discrimination is the key explaining variable for disparate educational attainment or outcomes forever. And when you attempt to rig the rules to achieve such "demographically proportionate" outcomes, you invariably end up penalizing better candidates on the basis of having the "wrong", "over-represented" racial background. That's not right.

Reasonable people can, of course, disagree on this sentiment (as shown by the 1/3 of Americans supporting affirmative action!). But we all have to look at the same set of facts, regardless of opinion. And the facts are deeply uncomfortable in this case. Especially when they illustrate the challenges faced by Asian Americans, the original plaintiffs in this case, when compared to other minorities in terms of college acceptance. No wonder the ideological hand-waiving required to confuse this fact has been so frantic.

But the handwaving didn't convince the Supreme Court, and the repercussions of this case will extend far beyond colleges. Corporate legal departments are already busy course-correcting and bracing for a slew of lawsuits based on the same premise: Using race, and other protected identity markers, to advantage some candidates over others is illegal.

Now it'll be interesting to see whether universities who've been operating on this illegal model will actually comply with the ruling. There's good reason to believe the bureaucratic commitment to racial preferencing isn't going to be discarded this easily. But it's a monumental ruling nonetheless, and now there's no longer any doubt as to what the law of the land is.

That alone, a clear ruling on the illegality of affirmative action, will undoubtedly help accelerate the waning days of DEI. With the legal basis drained, the ideological nature of this push will become all the more apparent and niche at the same time.

The original American promise that this is a country where you can make it regardless of where you came from has always been challenged in practice, but it's a beautiful ideal, and it'll shine just a little brighter now that the Supreme Court has dismantled one of the few remaining systemic impediments to its realization.

Toward a more perfect union!

About David Heinemeier Hansson

Made Basecamp and HEY for the underdogs as co-owner and CTO of 37signals. Created Ruby on Rails. Wrote REWORK, It Doesn't Have to Be Crazy at Work, and REMOTE. Won at Le Mans as a racing driver. Fought the big tech monopolies as an antitrust advocate. Invested in Danish startups.