The decision striking down affirmative action in college admissions will give critics of DEI efforts ammunition and prompt companies to carefully review programs, experts say. Corporate diversity efforts could be on the chopping block following the Supreme Court’s decision barring the use of race as a direct factor in college admissions. The court’s six conservative justices ruled that two colleges’ admissions practices discriminated against white and Asian American applicants through race-based policies that benefited applicants from other backgrounds. Though the decision does not outright implicate so-called diversity, equity and inclusion initiatives, attorneys and some business groups say that it provides fresh ammunition to critics seeking to upend these workplace programs. Conservative Republicans, including state and federal lawmakers and, notably, GOP presidential candidate Ron DeSantis, have harshly criticized such policies. “It will cause employers to take a closer look at how they are executing their diversity strategies,” Tim Bartl, the CEO of the HR Policy Association, told POLITICO shortly after the decision was handed down. “And it really creates an impetus for employers to reaffirm their commitment to diversity, but to do so in a way that mitigates the potential of challenge down the line.” Federal civil rights law already bars discrimination based on race or skin color in employment decisions, among a list of other protected characteristics like age and a person’s sex or gender. But for decades the court had extended greater leeway to colleges and universities, on the grounds that bolstering student body diversity enriches the learning experience. Thursday’s decision departs from that thinking, instead ruling that such race-based decisions run afoul of the Constitution’s equal-protection clause. “Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts stated in the majority opinion. That could also be extended to challenge DEI and other workplace diversity efforts on the grounds that they tacitly benefit certain workers over others. Some civil rights groups have also raised concerns that further restricting race-based affirmative action could lay a path to similarly limiting gender-focused programs. Affirmative action has been a hot-button issue since at least the Civil Rights era, with periodic flare ups over things like racial quotas and other policies designed to diversify the workplace and other parts of society. A wide constellation of things fall under the umbrella of DEI, which was pitched in part as a way to foster and promote a more equal work environment without resorting to the type of prescriptive measures that have inflamed tensions in the past. DEI took off particularly in the wake of the 2020 murder of George Floyd, a Black man, by a white police officer in Minnesota. Companies latched onto these policies as a way to attract and retain talent, particularly women and younger workers who have regularly cited diversity as an important value to them in surveys and public opinion polls. A Pew Research Center survey from May found that 56 percent of workers said that focusing on DEI was a “good thing,” compared to 16 percent who said it was bad. But the proliferation of these polices have also provoked a conservative backlash, with detractors scorning DEI as “woke” and divisive. “While today’s decision is an important step, racial bias of all types must be eliminated from all institutions in our society, whether they go by the name of affirmative action or fall under the newest Leftist moniker of ‘diversity, equity, and inclusion’ (DEI),” Matt Schlapp, chair of the Conservative Political Action Coalition, said in a statement. Republican lawmakers have moved to crack down on DEI initiatives on college campuses and other areas. America First Legal, a group headed by Donald Trump adviser Stephen Miller, in recent months has filed complaints with the Equal Employment Opportunity Commission seeking investigations into corporate diversity and hiring practices at major companies like Unilever, McDonalds and candy maker Mars. Corporations have already expressed some unease about being placed in the center of these competing pressures, and Thursday’s ruling will likely spur some to consider overhauling their diversity practices or back off on them to avoid potential legal headaches. “I think that there will be a greater attention paid to exactly how employers are looking at representation and how they’re looking at inclusion,” Bartl said. “Because at the end of the day, what employers really want out of their diversity programs is to identify a pool of diverse, qualified candidates that can be under consideration and then allow that process to work its way out.”
