Williamson: Maintaining DEI programs after recent SCOTUS decision

The U.S. Supreme Court reaffirmed the constitutionality of race-conscious admissions under certain conditions. However, it held that Harvard’s race-conscious admissions program was unconstitutional. The court ruled that it violated the equal protection clause of the 14th Amendment because it gave students preferential treatment based on their race. This decision will reverberate throughout society, including in law firms. In fact, several lawsuits involving workplace diversity are pending.

It is important to note, however, that the court’s decision does not prohibit all diversity initiatives. Even after the decision of the Supreme Court, law schools and law firms can promote diversity in the legal profession in several ways. It is permissible for law schools to continue placing an emphasis on diversity in their admissions processes. Similarly, when making employment and promotion decisions, employers may continue to promote DEI initiatives. The key is to focus on the underlying causes of disadvantage rather than explicitly focusing on race.

By focusing on narrowly tailored initiatives that do not rely on rigid race-conscious criteria and documenting the business and educational benefits of diversity and inclusion, law schools and law firms can maintain their DEI programs.

The Supreme Court decision: SFFA v. Harvard

On June 29, the United States Supreme Court handed down a major ruling in the matter of Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023). The court held that Harvard’s race-conscious admissions policy violates the equal protection clause of the 14th Amendment.

In 2014, Students for Fair Admissions, a nonprofit organization that opposes affirmative action based on race, filed a lawsuit against Harvard, alleging that its admissions policy discriminated against Asian American applicants. SFFA argued that Harvard’s use of race in admissions was not narrowly tailored to achieve the educational benefits of diversity, and that Harvard discriminated against Asian American applicants by holding them to a higher standard. Harvard defended its admissions policy on the premise that its affirmative action program was necessary to obtain the educational benefits of a diverse student body. Harvard demonstrated that racial diversity improves student learning, and its admissions policy is narrowly tailored to achieve this objective.

In 2018, the case proceeded to trial. The district court determined in its 2019 decision that Harvard’s admissions policy was narrowly tailored to accomplish the educational benefits of diversity and did not discriminate against Asian American applicants. Following an appeal by SFFA, the 1st Circuit Court of Appeals upheld the district court’s ruling in 2020. The SFFA then petitioned the Supreme Court. On June 29, the Supreme Court reversed the 1st Circuit’s decision and ruled that Harvard’s admissions policy violates the equal protection clause.

The decision in SFFA v. Harvard is based on the court’s interpretation of the 14th Amendment’s equal protection clause. The equal protection clause prohibits states from denying equal legal protection to any person within their jurisdiction. The Supreme Court has ruled that race-conscious affirmative action programs cannot be used to attain quotas or preferences based on race. It acknowledged, however, that it may be permissible if narrowly tailored to advance an important government interest. The Court determined that Harvard’s use of race in admissions was not narrowly tailored to achieve the educational benefits of diversity and that it injured Asian American applicants by imposing a higher standard. The court determined that Harvard’s use of race in admissions led to lower acceptance rates for Asian American applicants than for white applicants with comparable academic credentials. The court determined that Harvard could achieve its diversity goals without using race in admissions by considering socioeconomic status and geographic origin.

In SFFA, the Supreme Court also expressed concern regarding the use of racial generalizations to describe individuals. In making hiring, promotion and other employment decisions, law firms should not make racial assumptions about individuals. Instead, law firms should use an individualized evaluation procedure to assess their employees.

Legal challenges to DEI programs in the workplace

The American Alliance for Equal Rights is directed by Edward Blum, a 72-year-old conservative legal strategist and financial adviser who has spent decades challenging racial preferences through litigation. He was the driving force behind the Supreme Court cases involving the consideration of race in college admissions at Harvard University and the University of North Carolina.

The American Alliance for Equal Rights has filed two lawsuits against the law firms Perkins Coie and Morrison Foerster, alleging that their diversity fellowships expressly refuse to contract with certain applicants based on their race or ethnicity. Perkins Coie’s diversity fellowships provide underrepresented summer associates with a $15,000 stipend and an additional $10,000 if they join the firm. Morrison Foerster offers comparable programs, including a diversity training initiative.

However, Blum has not been the only opponent of initiatives promoting diversity and inclusion.

Starbucks was sued in August 2022 by the National Center for Public Policy Research for creating employment goals for Black and other people of color, giving contracts to diverse suppliers and advertisers, and tying CEO pay to diversity. National Center for Public Policy Research v. Schultz et al., No. 22-00267, U.S. District Court, Eastern District of Washington. NCPPR, which owns approximately $6,000 worth of Starbucks stock, asserted that Starbucks’ policies required it to make decisions based on race in violation of federal and state civil rights laws. Chief U.S. District Judge Stanley Bastian in Spokane, Washington, rejected the allegations, stating that the lawsuit involved questions of public policy that should be decided by legislators and corporations, not courts. He dismissed the lawsuit as frivolous.

The America First Legal Foundation filed a lawsuit against Amazon on behalf of a Texas woman, alleging that the company discriminates against white entrepreneurs seeking startup grants. Crystal Bolduc, a white woman, filed a lawsuit in the U.S. District Court for the Eastern District of Texas on July 20, 2022, after she was denied a $10,000 stipend that Amazon offers to its Black, Latino and Native American delivery service partners. The lawsuit alleges that Amazon’s policy of offering a stipend to only certain racial groups violates Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex or national origin. The lawsuit also asserts that Amazon’s policy violates the equal protection clause of the 14th Amendment. Attorneys for Bolduc contend that Amazon’s policy is not justified by any legitimate business objective. Moreover, they contend that the policy is detrimental to white and Asian American entrepreneurs, who are denied equal access to Amazon’s delivery service partner program.

In addition, AFLF filed lawsuits against Target for allegedly destroying shareholder value with its Pride-themed apparel and Kellogg for its diversity programs.

Legal lessons from SCOTUS and subsequent litigation

The decision of the Supreme Court in SFFA permits law firms to implement DEI programs notwithstanding of the current legal landscape. The following are some suggestions for achieving this objective. The development of partnerships with minority bar associations, recruitment at diverse law schools and diversity fellowships are examples of how law firms can foster diversity. Additionally, law schools and law firms should develop DEI programs that are narrowly tailored and document the benefits of diversity and inclusion.

Developing narrowly tailored DEI programs: To survive scrutiny under the equal protection clause, DEI programs must be narrowly tailored to accomplish their goals of promoting diversity and inclusion. This means that the programs must be tailored to address specific instances of discrimination or disadvantage and must not be overly broad or have unwarranted negative effects on non-minority groups.

Using race-neutral factors rather than race in admissions, employment and promotion decisions is one way to ensure that DEI programs are narrowly tailored. For example, organizations may consider socioeconomic status, first-generation college student status, veteran status and disability status. Organizations may also employ holistic evaluation processes that consider a variety of factors, such as the participant’s personal experiences with marginalization, previous efforts to combat marginalization, and intentions and plans to prevent further marginalization of groups.

Documenting the benefits of diversity and inclusion: In addition to developing DEI programs with a narrower focus, organizations should document the business and educational advantages of diversity and inclusion. This evidence can be used to demonstrate that DEI programs are necessary and do not impose an undue burden on non-minority groups.

An increasing body of research demonstrates that diversity and inclusion have numerous advantages for organizations. Diverse teams, for instance, have been shown to be more creative and innovative, as well as more adept at solving complex problems. Diversity can also contribute to improved employee engagement and morale, and it can help organizations to attract and retain top talent.

By collecting data on employee demographics, employee engagement and client satisfaction, organizations can document the benefits of diversity and inclusion. Additionally, organizations can conduct employee surveys and interviews to obtain their feedback on the benefits of diversity and inclusion.

Conclusion

The SFFA decision has made it more challenging for organizations to maintain their DEI programs. Organizations can continue to promote diversity and inclusion in the workplace and educational institutions, however, by developing DEI programs with a narrower focus and by documenting the benefits of diversity and inclusion.•

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Aaron J. Williamson is an associate at Kroger Gardis & Regas LLP. Opinions expressed are those of the author.