DCI Consulting Group (DCI) is monitoring reactions, answering questions, and releasing content related to the June 2023 Supreme Court ruling on with affirmative action in higher education¹. The Court's majority opinion was heavily based on a constitution interpretation of the Equal Protection Clause of the 14th Amendment where variations in law cannot be based on race or color. Additionally, the Court’s decision frequently referenced Grutter v. Bollinger², a 2003 SCOTUS ruling that allowed for the use of affirmative action in college admissions. The Court’s current decision is a monumental shift from previously accepted college admission practices that allowed race-conscious decision-making if it was not the sole determinant.  

In light of this decision, how should employers move forward with diversity, equity, inclusion, and accessibility (DEIA) initiatives? To determine this, it helps to examine what the Supreme Court found unconstitutional in Harvard and UNC’s admissions practices. 

Lack of objective means and analytical measurements.  

• The opinion from the Court found Harvard and UNC failed to link purported outcomes to their motivations for race-based decisions. There were no objective means or analytical measures for the Court to scrutinize the impact (positive or negative) that the entering academic class’s racial profile had on greater opportunities for diverse outcomes (e.g., diverse leadership, robust ideas, etc.). Harvard and UNC were unable to justify their diversity motives according to the Court’s interpretation of measurable goals.  

Trammeled the rights of other applicants.  

• The Court found Harvard and UNC’s admission practice of race as a “determinative tip” trammeled the rights of other applicants³. In other words, the benefits of selecting applicants with race-conscious motives directly affected and removed opportunities from those not selected. Further, the Court noted admission selections based on race are embedded in stereotypical beliefs of one’s ancestry and not current character or merit. While benefiting one protected class, the same decision point disadvantaged non-beneficiaries. 

No end date .  

• The Court held firmly that selection decisions based on race and made considering affirmative action gains need to occur within a structured timeline with an established end date. In fact, having an end date was so critical to the Court that it did not consider Harvard and UNC’s periodic reviews to stop current practices when meaningful representation was achieved as acceptable. Nor did the Court allow Harvard and UNC to operate under good faith prior to the year 2028, which is the date the Grutter decision predicted affirmative action would no longer be needed in higher education (539 U. S., at 343⁴). The Court’s only acceptance for an end point was to be defined by an actionable structured date that nods to Grutter’s requirement “use of race must have a logical end point” (539 U. S., at 342⁵).  

At its origin, the outcome of this decision and its impact on affirmative action within higher education admissions is complex and will increase scrutiny from legal counsel. However, affirmative action requirements in employment remain aligned to federal agency expectations. Foundationally, employers should continue validating their employment practices, supporting merit-based outcomes, and facilitating training to disengage race-based decisions.  

In response to the Supreme Court’s decision, Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows released a statement reaffirming that employers’ programmatic diversity, equity, inclusion, and accessibility (DEIA) efforts that are focused on inclusive environments and fostering diverse talent were not included, nor affected, by the Court’s opinion. DCI recommends the following DEIA action items that are aligned with Chair Burrows’ messaging: 

1. Develop strong DEIA commitment messaging from your organization’s leadership
2. Ensure internal oversight and accountability to allow for ongoing monitoring and continuous improvement.
3. Focus on increasing the pool of qualified candidates for open positions by expanding outreach and recruitment programs, both externally and internally.
4. Evaluate all phases of employment for DEIA progress including recruitment, selection, training, mentoring, and attrition. 
5. Company policies should be reviewed internally and by legal counsel for standardized language and consistent implementation.
6. Remember to comply with state and local laws. 

DCI continues to digest the Court’s opinion and will be releasing a thought leadership article answering frequently asked diversity questions. Meanwhile, employers should continue partnering with DCI and counsel to review current DEIA practices, policies, and programs. 

References

¹ Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (June 2023). 

² Grutter v. Bollinger, 539 U.S. (2003). For those who are not familiar with this case, the United States Supreme Court supported University of Michigan Law School maintain its affirmative action admissions policy. As a result, racial preference could be used in admissions to increase diversity. However, the Court provided guidance under which race-based decisions were permissible with strict scrutiny. 

³ Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina (2023).

⁴ Grutter v. Bollinger, 539 U.S. 306 (2003). 

⁵ Grutter v. Bollinger, 539 U.S. 306 (2003).