On June 29, the U.S. Supreme Court voted in a 6-3 decision to curb affirmative action in higher education—ending a four-decade precedent that allowed colleges and universities to broadly consider applicants’ race in their admissions processes.
The ruling came in response to a pair of lawsuits accusing Harvard University and the University of North Carolina of racial discrimination in admissions.
The court’s majority opinion, which all six conservative justices joined, stated that the court has “permitted race-based admissions only within the confines of narrow restrictions. University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end.”
In these cases, “the admissions systems—however well-intentioned and implemented in good faith—fail each of these criteria,” the opinion said.
Justice Sonia Sotomayor issued a sharp dissent, writing that the decision “rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.”
How the Decision Could Disrupt DE&I Efforts
In the workplace, diversity, equity and inclusion (DE&I) programs including training initiatives, outreach efforts, racial equity audits, equal pay provisions and other methods promote equal opportunity for job applicants and employees.
However, the Supreme Court’s ruling could lead to fewer employment opportunities for people of color—if fewer are admitted to colleges because of the removal of race-conscious admissions practices—and, as a result, impact recruiting and hiring efforts, according to Rob Buelow, a public health professional who serves as head of product for the education sector at technology company Vector Solutions.
“One of the fundamental values of higher education is preparing students to be successful in their careers and communities,” he said. “Anything that impacts college access among historically underrepresented communities can exacerbate gaps in employment, skills and advancement opportunities.”
Nika White, a leadership consultant and DE&I expert in Greenville, S.C., opined that DE&I in the workplace is necessary to address discrimination. It also helps uphold “a spirit of equity” so that everyone has full opportunity to succeed.
“The Supreme Court’s affirmative action ruling jeopardizes workplace diversity if employers lean towards hiring individuals from majority groups instead of practicing intentionality to attract and recruit historically underrepresented groups,” she said.
However, Michelle Crockett, chief diversity officer at legal firm Miller Canfield in Washington, D.C., doesn’t believe that the higher court’s decision should immediately change the way employers implement their DE&I initiatives.
As she explained, Title VII of the Civil Rights Act of 1964 already prevents companies from considering race when making decisions around recruiting, hiring, promotion or termination.
“In other words, it will still be permissible for employers to cast wide nets to identify qualified diverse applicants and to put specific measures in place to ensure that all employees have the tools necessary to compete for various employment opportunities,” she said.
Ruling Shouldn’t Deter Employers from Pursuing DE&I, Experts Say
U.S. Equal Employment Opportunity Commission Chair Charlotte A. Burrows confirmed that the ruling does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background.
“It remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace,” Burrows said in a statement.
Given the systemic inequalities that continue to exist, particularly for people of color, companies must stay vigilant with their DE&I efforts despite the higher court’s ruling, White added.
“Employers should be aware of the ongoing impact of systemic discrimination,” she explained, “and take proactive measures to identify and eliminate biases in recruitment, hiring and promotion while actively seeking to create a more diverse and inclusive work environment.”
Juliette Mayers, founder and CEO of DE&I consulting company Inspiration Zone LLC in Boston, said employers must also communicate and reinforce their values; express their commitment to DE&I; and brainstorm ways to sustain diverse pipelines, such as recruiting from historically Black colleges and universities.
“This decision will be a stress test for those who have made many pronouncements,” she said. “Organizations that are truly committed will allocate the resources and will innovate as necessary to ensure diverse, equitable and inclusive cultures and workforces.”
Craig Leen, former director of the Office of Federal Contract Compliance Programs who oversaw affirmative action in employment for federal contractors, said voluntary affirmative action programs require a “manifest imbalance” based on race before any action can be taken.
Outreach and recruitment can focus on underrepresented groups, but plus factors—such as a candidate’s race—as well as preferences and quotas remain unlawful.
“I would suggest that employers consult counsel regarding their affirmative action and diversity-focused programs to ensure they are following guidance from the U.S. Department of Labor and the EEOC,” Leen explained, “and that they emphasize that their programs promote equal employment opportunity and forbid plus factors, preferences and quotas.”
