Affirmative Action, DEI in Distress: The Beginning of a New Precedence?

When Chief Justice John Roberts asserted that "Eliminating racial discrimination means eliminating all of it," the debate over affirmative action reached a pivotal moment. Roberts deemed affirmative action racially discriminatory and unconstitutional, using impactful and least controversial language. However, the implications and context of this decision are far-reaching and deserve closer examination.

In June, the U.S. Supreme Court delivered a momentous ruling, rejecting race-based admissions at Harvard University and the University of North Carolina. The court found that these admissions programs violated the equal protection clause of the 14th Amendment, overturning four decades of legal precedent. This verdict marks a victory for opponents of affirmative action.

But what exactly is affirmative action? A straightforward definition is that it encompasses positive measures taken to increase the representation of women and minorities in areas of employment, education, and culture from which they have been historically excluded (Stanford Encyclopedia of Philosophy). However, the overruling of affirmative action has led its critics to view it as less controversial, arguing that it creates a level playing field for all applicants, regardless of race. Yet, this viewpoint fails to address the underlying factors that necessitated affirmative action in the first place.

Photo by: Redd F

Affirmative action responded to the systemic and structural inequities in society that have disadvantaged certain groups from accessing opportunities and living fulfilled lives. By rejecting race-based admissions, the Supreme Court's decision may have consequences beyond the education sector, potentially impacting university financial aid determinations and diversity programs. Without considering race in college admissions, there may be a decline in ethnic diversity unless significant changes are made to the admissions process. 

While alternative methods to promote diversity exist, experts argue that considering race in admissions has been the most effective approach. As colleges adapt to the ruling, they may explore targeted recruitment, increased financial aid opportunities, and test-optional policies to maintain campus diversity.

According to some experts, the broader implications of this decision would be evident in the corporate world. Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, and David Glasgow, Executive Director of the Center for Diversity, Inclusion, and Belonging, both at NYU School of Law, discuss how the ruling could affect corporate DEI efforts. They assert that some corporate leaders are contemplating discontinuing DEI programs they oppose due to the recent decision. Nevertheless, Yoshino and Glasgow propose alternative methods to promote DEI in the workplace, even in a more conservative legal landscape.

These alternative methods fall into three categories likely to persist:

1. Debiasing work: This involves measures to counter bias, such as removing stereotypes from job descriptions, using structured interviews, and basing promotions on merit and transparency.

2. Ambient work: Policies promoting diversity, like employee resource groups, mentorship programs, family-friendly policies, and outreach to diverse colleges. These initiatives do not explicitly consider race or gender in specific employment decisions.

3. Universal work: Embracing inclusive frameworks that benefit everyone, such as promoting allyship, fostering authentic work cultures, and enhancing psychological safety. These strategies are legally safe and notably positively impact marginalized individuals.

While the Supreme Court's ruling has prompted discussions and debates, it is crucial to consider its ramifications for all sectors. There is concern that attempting to implement DEI efforts while adhering to the new legal landscape could lead to ambiguity and uncertainty. After reading the matter under discussion and trying my best to summarize what I am assuming and analyzing, things will change everywhere. It will trickle down to other sectors or countries championing DEI efforts sooner or later. And yet again, the ambiguity of words and denial of context has led an open field to try and implement things that may or may not be fruitful. 

Why do I say that? Because everyone talking or advocating against the ruling is explicitly saying they are against it - however, they are also prompting and asking the policymakers and practitioners to consider "alternative ways" to keep moving forward with their DEI efforts - because if they go against the law - it could be the beginning of a precedence that would punish the need for DEI for human race at all levels of our complicated, intricate political, and socio-economic system. 

For now, educational institutions must cautiously implement the ruling, understanding the legal boundaries to avoid hindering diversity efforts. While some schools may achieve diversity without race-conscious admissions, data and research demonstrate that such policies have enhanced racial diversity on campuses most effectively. As we navigate this new landscape, it is essential to find innovative and inclusive solutions that promote diversity and equity while staying within the confines of the law. 

Affirmative action may have faced a setback, but pursuing diversity, equity, and inclusion remains vital in our quest for a more just and equal society.

Important Links:

1. The End of Affirmative Action - The New York Times (nytimes.com)

2. What SCOTUS’s Affirmative Action Decision Means for Corporate DEI (hbr.org)

3. Affirmative action ruling by Supreme Court will affect elite colleges : NPR