A venture by “red-state” attorneys general into private businesses’ race-based employment Policies could lead to new legal challenges, a political scientist says.

Tennessee Attorney General Jonathan Skrmetti led a coalition of 13 attorneys general last week in warning Fortune 100 companies, including three with a presence in Tennessee, that they could face legal action if they use hiring, promotion and contracting policies based on race. A letter to the chief executive officers of companies such as Tennessee-based HCA Healthcare and FedEx as well as Detroit-based Ford Motor Co., which is building the $5.6 billion BlueOval City in West Tennessee, based its legal argument on the recent U.S. Supreme Court ruling that struck down decades of quotas for college admissions designed to increase the number of minority students.

The group of attorneys general is “aggressively trying to expand this Supreme Court decision on race-based admission to colleges to the private sector and beyond, which would lead one to believe that this situation is not over and we’re probably going to see more court challenges as people try to apply the standard the Supreme Court ruled for higher education to all kinds of other circumstances,” said MTSU political science professor Kent Syler.

Decades ago, businesses lobbied against Title VII of the 1964 Civil Rights Act to stop the federal government from placing requirements on private enterprise in an effort to bolster the hiring of Black employees. But under the leadership of Skrmetti, attorneys general are using the same law to turn back affirmative action policies and tell businesses they can’t take race into account when hiring and contracting.

Historically, Republicans shied away from getting into corporate boardrooms. In October 2021, the Tennessee Legislature passed legislation to stop businesses from requiring masks and vaccines during the COVID-19 pandemic, but when Ford balked at the bills, Republican leaders backed down from their hard-line position to allow businesses to set their own policies.

Conservatives are getting involved again, though, this time to ensure minorities don’t get an advantage, representing an about-face from complaints people made about the Civil Rights Act 60 years ago.

“This is a situation where government is stepping into private businesses and telling them how they need to do their hiring,” said Syler, former chief of staff for Democratic U.S. Rep. Bart Gordon. “And if you’re a company trying to make sure your workforce is diverse and reflects the community, it makes it more difficult.”

FedEx, Ford Motor and HCA, all of which have diversity and equity programs, did not respond to questions from the Tennessee Lookout asking whether they are concerned about being investigated by the attorney general’s office.

The University of Tennessee, which also has diversity and equity programs, said it is aware of the AGs’ letter and is monitoring it.

The AGs’ letter reminds companies they must refrain from “discriminating on the basis of race, whether under the label of ‘diversity, equity and inclusion’ or otherwise. Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong.”

The Supreme Court ruling struck down race-based admissions policies at Harvard College and the University of North Carolina.

The attorney general’s office would not say whether it plans to scrutinize those companies or look into programs at the University of Tennessee or historically Black colleges such as Tennessee State University.

“The letter was not targeted at any individual corporation,” attorney general spokeswoman Elizabeth Lane said in a statement. “In the wake of the Supreme Court’s (Students for Fair Admissions v. President & Fellows of Harvard College) decision, there was a lot of misinformation and superficial legal analysis.”

Lane noted that employers “need to know that treating employees differently based on the color of their skin comes with legal risk. There are alternative paths for companies to create opportunities for disadvantaged individuals and communities and to promote equality.”

The attorney general’s office has a racial minority makeup of 15%, according to Lane.

The attorneys general letter also compares diversity and equity policies within Fortune 100 companies to slavery and racial segregation laws, saying, “In an inversion of the odious discriminatory practices of the distant past, today’s major companies adopt explicitly race-based initiatives which are similarly illegal.”