Does the Supreme Court’s Affirmative Action Ruling Put All DEI Efforts at Risk?
At the end of June, the U.S. Supreme Court struck down Harvard and the University of North Carolina’s (UNC) use of race as a “tip” in college admissions. In the immediate aftermath, some, including several attorneys general, falsely claimed that the decision outlaws race-conscious admissions at large or mandates employers to terminate lawful diversity, equity, and inclusion (DEI) programs.
Open to All partnered with our Public Education Coalition member, the Legal Defense Fund (LDF), to deliver a rapid response briefing to outline the reach and repercussions of this decision, as well as fact check the false claims about the decision’s implications. As the nation’s leading legal organization fighting for racial justice, LDF provided Open to All’s corporate partners with an in-depth legal analysis of the Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina decisions, as well as a breakdown of the implications for Title VII of the Civil Rights Act of 1964 and corporate DEI programs as a whole.
The Civil Rights Act of 1964 emerged as a crucial milestone in the U.S. civil rights movement of the 1950s and early 1960s. In the wake of 1963’s Birmingham Campaign and March on Washington, public outrage and social unrest prompted Congress to address the pervasive, systemic discrimination that long existed in our nation’s workforce, particularly against Black Americans and other minorities. Title VI of the Civil Rights Act of 1964 forbids racial discrimination by federally-funded entities. Title VII aims to ensure equal employment opportunities for all by requiring employers to proactively promote diversity and inclusion. The law prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. This historic legislation marked a significant stride toward eliminating discrimination in employment and reshaping the landscape of American labor.
Almost sixty years after its enactment, Title VI, along with the Equal Protection Clause, was used in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina to challenge the use of race-conscious admissions.
The Equal Protection Clause requires any government-imposed racial classification to withstand “strict scrutiny,” which means that it must be narrowly tailored to advance a compelling government interest. Title VI places comparable restrictions on the use of race by federally-funded entities. In its ruling, the Court reasoned that the universities’ affirmative action practices, although “well-intentioned and implemented in good faith,” failed to meet the standards of strict scrutiny. SCOTUS held that Harvard and UNC’s diversity goals were neither coherent nor measurable enough to justify the use of race in admissions. The programs’ lack of endpoint was another flaw of the schools cited by the Court. However, the Court was clear that the decision did not forbid colleges and universities from considering how race may have impacted students’ lives as part of their admissions decisions. Nor did it alter colleges and universities’ obligations to identify and eliminate policies and practices that disproportionately exclude students of color.
The decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina did not change employers’ obligations to create equal employment opportunities or their ability to take steps to create diverse, equitable, or inclusive workplaces. The Equal Protection Clause and Title VI do not apply to most private companies. Instead, they must abide by Title VII, which applies to any private-sector or state and local government employer with over fifteen employees, as well as to the federal government. Employers are forbidden by Title VII from utilizing race, color, religion, sex, and national origin in hiring, firing, promotions, or other employment decisions, except in certain circumstances where organizations are attempting to address past discrimination. In fact, in accordance with Title VII, employers are obligated to identify and eradicate discriminatory practices.
Diversity, equity, and inclusion (DEI) programs can help companies to satisfy legal requirements. These programs can include efforts to communicate the value and importance of diversity; create affinity groups; expand recruitment to increase the diversity of qualified job applicants; create an inclusive work environment, such as by providing workforce trainings to prevent and remedy harassment; set aspirational workforce representation goals; assess artificial barriers to equity for potentially discriminatory outcomes; remove job qualifications that are unnecessary and unrelated to the position. They generally do not involve the consideration of race in an employment decision, like hiring or firing. DEI initiatives can help companies comply with long-standing civil rights obligations by decreasing barriers to opportunity.
Following the ruling, Charlotte Burrows, Chair of the Equal Employment Opportunity Commission, released a statement underlining the legality of DEI programs. Twenty-one attorneys general reiterated this message in a letter citing considerable case law to support the legitimacy of DEI efforts.
The Leadership Conference for Civil and Human Rights, an Open to All Advisory Council member, along with other civil rights organizations, also issued an announcement condemning the Supreme Court’s decision to roll back decades of precedent. Another one of Open to All’s Public Education Coalition members, Asian Americans Advancing Justice — AAJC, released a statement responding to the decision.
If present gaps in work opportunities are closed, our nation’s economy is predicted to grow by trillions of dollars. Not to mention, companies with diverse teams are known to have more customers, greater market share, and higher profits. We all aim to reach a point where wage and employment disparities cease to exist. But we’re still far from that point. Until then, we must rally around diversity, equity, and inclusion in our schools, workplaces, and communities.
