[co-authors: Ebony S. Morris, Valerie E. Fontenot]
The United States Supreme Court’s recent decision to strike down affirmative action admissions policies in higher education certainly caused a whirlwind reaction from the legal community. On June 29, 2023, the Supreme Court ruled that race-conscious college admissions policies at two universities aimed at maintaining racially diverse student bodies violated the Equal Protection Clause of the Fourteenth Amendment, which broadly prohibits discrimination based on race.
In, Students for Fair Admissions Inc. v. President & Fellows of Harvard College, Docket No. 20-1199, and Students for Fair Admissions Inc. v. University of North Carolina, Docket No. 21-707, a nonprofit group called Students for Fair Admissions (“SFFA”) sued Harvard College and the University of North Carolina. SFFA's mission is to prevent higher education institutions from considering race at all in the college admissions process.
In both cases, SFFA argued that race-conscious admissions policies discriminated against certain applicants on the basis of their race, color, or ethnicity in violation of the Fourteenth Amendment and Title VI and asked the Court to reverse Grutter v. Bollinger, 539 U.S. 306 (2003) and hold that universities receiving funds under Title VI may not lawfully implement such policies.
The lower courts in both Harvard and UNC found in favor of the universities, holding that they each had a compelling interest in diversity and had narrowly tailored their race-conscious admissions policies to achieve results that could not otherwise be achieved through race-neutral means. In a not so surprising ruling reversing the lower courts, Chief Justice Roberts characterized the diversity goals in educational settings as “commendable” in his majority opinion, but in a seeming contradictory following statement he opined that “[r]acial classifications are simply too pernicious to permit.”
The Court’s decision has unfortunately emboldened conservative groups to challenge DEI initiatives outside of the educational universe. Shortly after the Court’s ruling, several attorneys general sent a joint letter on July 13, 2023, to Fortune 100 companies in the United States and warned them that race-based preferences “whether under the label of ‘diversity, equity, and inclusion’ or otherwise,” may violate federal and state antidiscrimination laws. The state attorneys general urged companies to “immediately cease any unlawful race-based quotas or preferences” or be “held accountable—sooner rather than later—for your decision to continue treating people differently because of the color of their skin.”
More recently, several conservative groups have challenged corporations such as Amazon and Comcast on their DEI initiatives. The American Alliance for Equal Rights, a nonprofit whose stated purpose is to challenge race and ethnicity-based preferences, is suing two international law firms for their diversity fellowships after the Supreme Court outlawed affirmative action. With the recent uptick in DEI challenges, corporations dedicated to DEI should be prepared to defend its internal and external DEI initiatives. In order to effectively defend against future litigation risks, companies should begin engaging their key stakeholders to evaluate and decide how to approach DEI programs.
First, corporations should consider broadening their definition of “diversity.” With DEI programs in the spotlight, companies can seek to improve diversity through initiatives focused on criteria that will increase racial diversity within the profession. In addition to race, corporations can include factors such as socioeconomic status, first generation attorneys, unique personal circumstances, and geographic diversity to broaden their DEI initiatives following the Court’s affirmative action ruling.
Corporations should also remind their employees, colleagues, and clients, that DEI initiatives cover more than just race. In fact, it is a well-known fact that the number one beneficiary of affirmative action since its inception has been white women. Corporations should educate their stakeholders on their overall DEI goals to increase voices of all kinds whether it be based on race, gender, religion, or sexual identity, which help the corporation better meet their client needs.
Another strategy companies should consider is using racial data to stress the importance of DEI initiatives. Racial data is the most powerful tool in justifying DEI’s current existence. Organizations that are neither able to demonstrate an evidence-based reason for DEI programs’ existence, nor an evidence-based assessment for DEI programs’ effectiveness will never be able to decouple their DEI efforts from short-lived trends and fads. Lily Zheng, How to Effectively – and Legally – Use Racial Data for DEI, July 24, 2023.
More importantly, companies should continue to strengthen their diverse pipelines. According to Law360 data from August 2021, attorneys who identify as Hispanic/Latino, African American/Black, Asian American, Native American or Alaska Native, Native Hawaiian/Pacific Islander, and two or more races, make up 18.1% of all attorneys and 9.7% of equity partners in the US law firms they surveyed. These numbers represent abysmal representation within the profession, and the Court’s ruling will further lead to a reduction of diversity within the profession. Given the numbers and the Court’s ruling, corporations should not shy away from maintaining diverse pipelines, including recruitment at HBCUs. Corporations dedicated to DEI efforts must remain dedicated to strengthening their diverse pipeline initiatives and casting a wider net to attract and keep diverse candidates.
Although the Supreme Court’s recent decision focuses on affirmative action in higher education, it will influence broader conversations and unfortunately, pave the way for more DEI attacks. Regardless of the Supreme Court’s decision, corporations should continue to prioritize their DEI efforts and fight against attacks on maintaining diversity within the profession.
