The SCOTUS Ruling on Race Conscious Decisions in Higher Education

It’s Time for Organizations to Redouble their DEI Efforts – 
And it’s Time to Commit to Doing it Right!

The recent Supreme Court decision on Affirmative Action in higher education is creating a ripple of anxiety that reaches far beyond the education sector. In a recent article (1), Noah Feldman warned, “Whether gradually or quickly, every chief diversity officer in the country will need a new job title — and perhaps a new job. The pursuit of diversity, equity and inclusion will require rebranding and reimagining.”

Throughout the US, DEI advocates are wondering: Will my organization have to abandon its DEI efforts? Does this mean that we can no longer recruit underrepresented populations? Can I gather data on underrepresented populations? What do we say to our employees? What about my organization’s DEI incentive program? Will I have a job as a corporate DEI professional?

For an excellent assessment of the legal implications of the ruling, read “Does the Supreme Court Decision on Affirmative Action Affect your Company’s Diversity Initiatives” by Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law and faculty director of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging, and David Glasgow, Executive Director of the Meltzer Center. Below, I offer a few thoughts based on my years of experience leading DEI transformation efforts.  

Will my organization have to abandon its DEI efforts?

Definitely not! As Yoshino and Glasgow tell us, the Court’s decision was about affirmative action in higher-education admissions, not affirmative action in private workplaces. While the Court held that affirmative action violates the Equal Protection Clause in the US Constitution (and, by extension, Title VI of the Civil Rights Act of 1964), it did not hold that affirmative action violates Title VII of the Civil Rights Act of 1964—the main statute governing the employment relationship. And the ruling does not directly impact employment laws—federal contractors with mandatory affirmative action programs still have those obligations. Nothing in this opinion directly impacts private employers with voluntary DEI efforts because these efforts “do not involve employers taking race or other legally protected characteristics into account when making hiring or promotion decisions” That has already been prohibited in decision making under Title VII.

The conflation of the higher education decision with organizational DEI efforts is simply wrong.

However, it is an opportunity for organizations to take a hard look at their DEI approaches and ensure that they are getting it right. What does that mean? It means being holistic, approaching the entire ecosystem and taking a systems approach.

Does this mean that we can no longer recruit underrepresented populations?

You can continue to reach out to a range of colleges and universities. It is true that as a result of the SCOTUS decision in higher education, the pipeline of students will get less diverse and organizations will have to work harder to reach out earlier to a broad range of students through internships and scholarships based on established criteria such as life experiences. And organizations will have to invest in middle and high school education in order to build the pipeline of diverse talent.

Can I gather data on underrepresented populations?

Yes- you can gather aggregated data and use it to determine adverse impact in the talent lifecycle. With that understanding you can implement initiatives to address the pain points. Initiatives can be designed to remove bias for all employees. The data is also effective in demonstrating the WHY of your DEI initiatives and in demonstrating the impact.

What do I say to my employees?

Reaffirm your organization’s commitment to DEI as a business imperative and link it to your business strategy. Stay the course - you have made some hard-won gains, now is not the time to let them slip away or you risk losing credibility with your employees as well as their commitment and engagement.

What about my organization's DEI incentive program?

Ensure that your DEI incentives include both lag and lead indicators or both the outcome numbers and the processes and actions that, if done consistently, will get you to the outcomes. Make sure you provide enough weight to the inclusive actions in your incentives. These are simply good inclusive leadership practices and can include mentoring and sponsoring talent, sponsoring ERGs, engagement in the community, and developing a range of diverse successors. By including the lead indicators, you are not focused only on numeric race outcomes but instead are incenting managers for inclusive leadership practices.

Will I have a job as a corporate DEI professional?

Despite recent articles in the Wall Street Journal and Financial Times about exits by Chief Diversity Officers as organizational priorities shift, my guess is that the DEI role is here to stay. It might evolve to be broader than DEI and include other aspects of HR or the business. Over the past few years, the importance of DEI accelerated as organizations actively recruited DEI professionals to address the impact of COVID and tragic deaths of Black men and women such as the murder of George Floyd and the global outrage. Those organizations that simply reacted to external events as opposed to integrating the criticality of DEI to the business and its employees, will likely scale back their DEI efforts until the next crisis. The DEI professional’s job will likely be harder as they play the role of Influencer in Chief- but DEI professionals know this drill only too well having been there before! They are up to the challenge!

So what can DEI professionals do?

• Stay tuned to external trends and consider the DEI implications and evolve your strategy to align and address these trends.
• Focus on understanding your organization’s business and build a bridge between your DEI goals and the business in a practical way.
• Hone the business case for your organization and continue to ensure that DEI adds value to the organization.
• Gather aggregated data to identify adverse impact and develop initiatives to address bias in the system for all employees.
• Know what you are solving for and how to position it for most inclusion and least backlash.
• Broaden your DEI efforts beyond HR and continue to be inclusive of a broad range of identities.
• Build your base of allies with your business leaders.
• Audit your DEI initiatives and partner with your legal teams to see how you can together mitigate risk while meeting your organizations desired DEI goals.
• Communicate with your employees because if you are anxious, they most certainly are!
• Find ways to nurture yourselves and stay resilient.

What can organizations do?

• The D remains important: Focus on diversity and widening the talent pool so you can hire the best qualified regardless of identity. And focus your efforts widely on all aspects of our multifaced identity.
• Move from D to I: Focus on fostering a culture of inclusion where all talent can participate fully. Ensure that you are nurturing a broad range of employee resource groups (ERGs) including allies and encourage them to partner across ERGs. Make sure that each employee has an ERG they can identify with: veteran, generational etc.
• Address the E: Ensure that your systems are unbiassed for ALL talent. Eliminate systemic barriers that inhibit full participation and equal access to opportunities in your talent life cycle- including hiring, promotion, succession planning, pay etc. Focus on enforcing equal opportunities not equitable outcomes.
• Open to all: Ensure that your development initiatives to diversify the pipeline are open to all while addressing those who need these opportunities the most. In your mentoring, coaching and sponsorship programs, consider “oversampling” certain populations based on their life experiences.
• Move beyond HR: Embed DEI in all your systems and processes including marketing, supply chain, business development and more.

Conclusion

We have seen these DEI ebbs and flows before and we have always risen to the occasion. This is another inflection point. It is an opportunity to re-double our efforts - to commit to making our DEI efforts stick - to look for innovative solutions. It feels overwhelming, I know. And it is good to be humble in the face of what lies ahead. But EACH of us has the power to influence our corner of the world, regardless of who we are. If not you, then who?  

You can order a copy of Rohini Anand’s book, Leading Global Diversity, Equity and Inclusion.  

References
(1) The Supreme Court Will Make It Harder to Hire a Diverse Team: Analysis by Noah Feldman | Bloomberg; October 31, 2022 at 12:30 p.m. EDT

IAC'S RESPONSE TO THE OVERTURNING OF AFFIRMATIVE ACTION

The Inclusion Allies Coalition (IAC) Founders stand in respectful but emphatic opposition to the historic decision of the U.S. Supreme Court to reverse Affirmative Action per their ruling on June 29, 2023. This decades-long precedent allowed colleges and universities — public and private — to consider race as one factor in deciding which of the qualified applicants is to be admitted in order to create more diverse student bodies.

The Court’s rationale for the ruling suggested so-called “race-conscious” admission programs at colleges and universities across the country disadvantage White and Asian students and, therefore, “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” We believe this logic, cloaked in the Equal Protection clause of the 14th Amendment, fails to take into account the legacy of discrimination and systemic inequities rooted in policies and programs that has afflicted Black and African descended people and Native Indigenous populations in North America since before the very founding of the Nation.

Our history patently shows that the U.S. has never been a “color blind” society. This decision sends a message that all students are equally disadvantaged through consideration of race in college admissions and fails to take into account the intergenerational impact of inequality that is the daily burden of marginalized racial groups in our society.

Equally disturbing is Chief Justice Robert’s suggestion that racial minorities are not entitled to admissions concessions based on their race, but they may include in their college applications stories of how their disadvantage has negatively affected their academic standing: “...Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.”

Further, we find it alarming that Chief Justice Thomas, who supported the ruling, directly benefitted from Affirmative Action. Were it not for Affirmative Action, he would not have been admitted to Yale—a fact that he has made public in numerous interviews. Moreover, Thomas was Chair of the Equal Employment Opportunity Commission and claims this experience as pivotal in his career. “I still count my years here as the most formative of my career, and perhaps my life,” Thomas is quoted in a 2006 press release by the EEOC. “I’ve been asked on any number of occasions, what was the best preparation for being on the Supreme Court? And, invariably, my answer is, my years at the EEOC. It was the best training for what we do today. . . During those times, we made decisions that actually mattered; they changed the agency or changed people’s lives, and affected people’s lives.”

The Court’s decision reinforces and further institutionalizes a long-standing and inequitable pattern that puts the onus of responsibility on students from underrepresented groups to advocate for equity. As a counterpoint, when or where have students of the majority group ever had to advocate for their rights or entitlement to receive the advantage of their Whiteness? The National Bureau of Economic Research, a think tank, that shows nearly 70% of legacy and donor-related applicants are White, and that such students are six to seven times more likely to be admitted to Harvard than non-legacy applicants. The NBER report further adds that among White students granted admission, over 43% are from athletes, legacies, those on the dean's interest list, and children of faculty and staff.

Within the IAC, one of the precepts of our work with students and clients on diversity, equity, and inclusion (DEI) is to expose them to the myriad disproportionate ways members of underrepresented groups have to justify, explain and defend their existence, much less obtain access to equal protection. The Court opinion is regressive to that dynamic and solidifies the status quo in ways that further disadvantage racial and ethnic minorities in the U.S. This affects not only students, but the workforce of the future, the opportunities afforded for wealth and equity, and the ability to drive innovation and business performance for companies across a multitude of industries.

Within these racial groups, gaps of almost incalculable size exist in the United States with respect to health, access to education, and access to credit and capital. To date and in spite of its shortcomings, Affirmative Action has been the only approach that has concretely shifted access to education for Black and Brown students. Specifically, following the 2003 U.S. Supreme Court decision in favor of affirmative action, the Latino/Black student population at the University of Austin, Texas was 21% (16.9% Hispanic and 4.5% African-American). Under the new policy, the proportion of the student body composed of Hispanics and African-Americans rose to 25%. Conversely, The Review of Economics and Statistics developed an analysis which predicts that a public university with an admission rate of 60% would see its Black student enrollment fall an estimated 1.19 percentage points and its Hispanic enrollment decline by 1.58 percentage points following a ban on race-based admissions. The American Educational Research Journal concluded that fewer underrepresented minorities pursued graduate degrees in science-related fields after public universities stopped considering race and ethnicity in previous Court rulings.

This current ruling has long-range “ripple effects” that may extend to hiring practices and the misconception that consideration of race in all cases is irrelevant. To quote Justice Ketanji Brown Jackson from her dissent,” …deeming race irrelevant in law does not make it so in life.” This decision will be felt by all of our members regardless of social identity, including race. It is antithetical to everything we know about how to bridge differences and bring people from disparate groups, ethnicities, and races together. The Review of Economics and Statistics developed an analysis which predicts that a public university with an admission rate of 60% would see its Black student enrollment fall an estimated 1.19 percentage points and its Hispanic enrollment decline by 1.58 percentage points following a ban on race-based admissions. The American Educational Research Journal concluded that fewer underrepresented minorities pursued graduate degrees in science-related fields after public universities stopped considering race and ethnicity in previous Court rulings. This current ruling has long-range “ripple effects” that may extend to hiring practices and the misconception that consideration of race in all cases is irrelevant. To quote Justice Ketanji Brown Jackson from her dissent,” …deeming race irrelevant in law does not make it so in life.” This decision will be felt by all of our members regardless of social identity, including race. It is antithetical to everything we know about how to bridge differences and bring people from disparate groups, ethnicities, and races together.

Justice Sotomayor has in the past publicly praised the impact Affirmative Action has had on her education and career. In her dissent, she wrote “entrenched racial inequality remains a reality today. Ignoring race will not equalize a society that is racially unequal."

We are a society composed of individuals and groups. As such, we must learn to acknowledge both individual achievement and the systemic barriers born from racial bias and discrimination that continue to plague groups of people who continue to be unfairly and equitably treated under the law, now and in the past.

We will continue to work to mitigate the negative impacts of this ruling on the students, clients, mentees, colleagues, and organizations with whom we work not to indoctrinate them to an ideology, but to help them learn to see and intervene when the forces of the status quo for the few threaten progress for all.

(The Inclusion Allies Coalition is a 700+member global organization composed of organizations and practitioners committed to diversity, equity, and inclusion within our organizations and society. We provide resources, advocacy, conferences, and webinars for dialogues across differences to promote inclusion. We serve as allies for those who feel marginalized and advocated for inclusive policies and practices. Our vision is to be the voice of DEI practitioners, globally.)