Affirmative action is under attack. This June, the US Supreme Court likely will issue decisions in two cases backed by conservative activist groups challenging race-based affirmative action in higher education as unlawful discrimination. The Court has signaled that its decision is likely to end affirmative action. As well, conservative activist groups are closely watching these decisions to further their use of the courts to challenge diversity, equity, and inclusion (“DEI”) programs in workplaces. Organizations should act now to proactively modify their DEI programs and policies – to protect and even deepen them – while mitigating the risk of successful “reverse discrimination” and other lawsuits.
About the authors:
Linda Goldman is an HR consultant for PEG. Elsewhere Linda also works as an employment lawyer and workplace investigator, and previously was a Title IX officer for UCLA, an employment law professor at Loyola Law School, and a federal law clerk.
John Newsome is the founder of Public Equity Group and a long-time consultant with experience across government, philanthropy, and non-profit organizations.
Kelly Tieu is a social sector attorney and former associate at Gibson Dunn & Crutcher.
To learn more history about affirmative action, the context surrounding the Students for Fair Admissions cases and the oral arguments for the cases, and to learn what experts in higher education and employment law have predicted, read the Newsweek article “Ending Affirmative Action Will Be an ‘Earthquake’ for Colleges, Companies.” https://www.newsweek.com/2022/11/25/ending-affirmative-action-will-earthquake-colleges-companies-1759783.html
To learn more about the effect of the Supreme Court cases on diversity pipelines, predictions regarding challenges to the use of race and gender as factors in employment decisions, and current law governing employment discrimination, read the HR Policy Association article “Five Things CHROs Should Know About the Supreme Court’s Harvard and UNC cases.” https://www.hrpolicy.org/insight-and-research/resources/2022/hr-workforce/public/10/five-things-chros-should-know-about-the-supreme-co/
To learn more about general best practices companies can follow to create compliant DEI programs, practices, and policies, read the Harvard Business Review article “To Drive Diversity Efforts, Don’t Tiptoe Around Your Legal Risk.” https://hbr.org/2022/07/to-drive-diversity-efforts-dont-tiptoe-around-your-legal-risk?registration=success
To learn more about potential consequences of the SCOTUS decision for charitable foundations and nonprofits, read a comprehensive brief commissioned by the Hewlett Foundation. https://www.mto.com/news/headlines/2023/-mto-prepares-memorandum-for-charitable-foundations-and-nonprofits-addressing-the-potential-consequences-of-the-supreme-court-s-upcoming-decisions-on-considering-race-in-college-admissions