DEI Efforts Face a Major Evaluation After Affirmative Action

After four decades of affirmative action, the US Supreme Court determined that race-conscious admissions policies at Harvard University and the University of North Carolina violated the equal protection clause of the US Constitution. This not only thrusts colleges and universities but also corporations, law firms, and the courts into legal limbo.

Affirmative action had been the basis for encouraging diversity in higher education, business, and the courts. Leaders needed direction maneuvering in the new landscape after the Supreme Court’s decision.

The New York State Bar Association, the largest voluntary state bar association in the country, launched a Task Force on Advancing Diversity to chart a legal path forward within the parameters of the court’s decision. The intent was to preserve and build on the progress made so far.

The 50-member task force was made up of some of our state and country’s sharpest legal minds with years of experience and insight into the benefits of a diverse society. The effort—headed by former Homeland Security Secretary Jeh Johnson, former US Attorney General Loretta Lynch, and Brad Karp, chair of Paul, Weiss—included the chairs of 16 major law firms, the chief legal officers of 10 large corporations, five of New York’s eminent judges, and the deans of Columbia and NYU law schools.

Task force members worked with incredible devotion through the summer to release comprehensive recommendations so that colleges and corporations would be able to continue to encourage diversity in a fashion that would stand up to legal scrutiny. The resulting 93-page report features a wide range of strategies to that end.

Implications for Academia

One of the report’s key takeaways in the academic admissions process is that race can and should continue to be considered—but in the context of how individuals are impacted by it. For example, prospective students might outline their individual experiences in college essays or interviews on how their lives were impacted by racial issues, and challenges that were created because of race or a role model’s success in overcoming racial issues.

A university that includes a variety of viewpoints and lived experiences in its curriculum is well within its rights to admit diverse students whom its administrators believe could further that mission.

The report also supports a comprehensive list of race-neutral strategies whose implementation will continue to advance diversity. This might include colleges evaluating applications in the context of whether first-generation college students had a more difficult path, or if students in high schools in economically depressed areas succeeded despite the limited selection of Advanced Placement or International Baccalaureate opportunities.

Paying attention to geography, economics, and social conditions may be considered when applied to individual applicants. The policy also considers the possibility of premier institutions of higher education offering admission to the top student in every high school in their state, as is the policy in Texas. While that strategy is on its face race-neutral, given that many neighborhoods across America are still largely segregated, it would likely increase diversity.

The report urges universities and graduate schools to examine whether giving preferences to children of alumni, a process known as legacy admissions, as well as recruited athletes and relatives of donors, disproportionately benefits students who are White and affluent.

Task force members firmly believe that some institutions of higher education might want to move away from requirements for standardized tests, which studies have shown can create additional racial inequities, and focus on more holistic evaluation of students.

Colleges and graduate schools should also increase the availability of financial aid, provide diverse mentors, and target scholarships to low-income students. No one strategy will work on its own, but in combination, they will help attract diverse students and keep them engaged. In California, where affirmative action has been banned for nearly three decades, these strategies have been effective in bolstering diversity, though with less success than affirmative action programs.

Corporate Considerations

Most corporate diversity and equity initiatives continue to be lawful in the wake of the Supreme Court ruling so long as they comply with the federal anti-discrimination statutes, including Title VI and Title VII of the Civil Rights Act.

While DEI has been subjected to shareholder challenges, reverse discrimination litigation, and government investigations, the report suggests weighing those risks against the downside of foregoing these efforts. Companies that abandon their public commitments can be subject to Securities and Exchange Commission investigations, shareholder derivative suits, and discrimination actions.

Corporations can also turn to ideas that go beyond affirmative action such as pipeline programs, affinity or employee resource groups, fellowships, scholarships, mentorships, and sponsorships. These efforts target increasing the number of diverse students and maintaining diverse employees. Traditionally such programs are considered lawful under Title VII.

Where We Go From Here

As a legal organization, the New York State Bar Association is concerned with diversity in the courts. It’s necessary that the judiciary look more like our population. We must attract a wider and more accurate societal representation of law students, which leads to more diversity in law firms and ultimately on the bench. This has been a long-standing focus for the association.

We recognize this effort will likely take years and success will come incrementally. In the meantime, one of the report’s key recommendations is bias training for judges, jurors, and court personnel. It’s important that courts be diverse, because one thing is certain: The ideal of creating a society that treats everyone equally is still a work in progress, and we expect to see litigation testing the limits of these principles for years to come.

We need to respect the decision of the court. But we also must work to elevate our society toward the ideals that are the foundation of our national identity. The US and New York state have flaws, and we must continue to attempt to correct them.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Richard Lewis, president of the New York State Bar Association, is special counsel at Hinman, Howard & Kattell in Binghamton.