In the wake of the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College case, both public and private sector programs encouraging diversity, equity, and inclusion (DEI) have faced numerous reverse discrimination lawsuits. A major number of these lawsuits target programs that apparently benefit individuals of specific races. It is yet to be seen how courts will respond to cases that challenge facially neutral DEI programs. Here, proving a discriminatory intent could be more complex.
A recent win for diversity came in the form of the US Supreme Court’s refusal to hear arguments in the Coalition for TJ v. Fairfax County School Board case. This decision indirectly indicates the justices’ reluctance to disrupt current legal understandings on the lawfulness of facially neutral programs advancing DEI goals, which can have significant implications for both academia and private businesses operating DEI programs.
In the SFFA case, the court ruled that race-conscious admissions programs at Harvard and the University of North Carolina contravened the Equal Protection Clause of the Fourteenth Amendment; furthermore, this decision raised questions about the lawfulness of DEI policies and programs that remain racially neutral. Chief Justice John Roberts’ majority opinion highlighted the need for cautious consideration of the applicant’s life experiences in relation to race or racial discrimination.
Interestingly, some judges have indicated their willingness to hear arguments suggesting that DEI efforts might conceal attempts at ensuring preferred racial outcomes. However, given the Supreme Court’s reluctance to address this matter, it’s clear that businesses pursuing DEI efforts can attempt to mitigate litigation risk by developing race-neutral eligibility criteria. The court’s refusal to hear the Coalition for TJ case underscores this point, proving that intentional discrimination is more challenging to demonstrate when criteria are facially race-neutral.
In conclusion, while the court’s decision in Coalition for TJ is a win for diversity advocates, challenges to racially neutral DEI programs are expected to continue. Thus, businesses and organizations should keep a close eye on developments in this area.
For more in-depth details, readers are encouraged to refer to the cases Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Coalition for TJ v. Fairfax County School Board.
For those seeking more information about the authors of this topic, they are Valecia M. McDowell and Joshua D. Lanning, co-heads of the DEI advice, audits, and assessments practice at Moore & Van Allen in Charlotte, N.C., and Elena F. Mitchell, a senior associate in Moore & Van Allen’s DEI advice, audits, and assessments practice.