February 24, 2025

The Impact of the U.S. Supreme Court’s Affirmative Action Ruling on Employers, DEI Initiatives, and What’s Next

On June 29, 2023, the U.S. Supreme Court issued a long-awaited decision that ended affirmative action in higher education. In fear of potential lawsuits and to ensure compliance with the recent Supreme Court decision, many academic institutions and employers began immediately revisiting their affirmative action and diversity, equity, and inclusion policies. A panel at the 2024 Diversity Conference Annual Forum discussed the Supreme Court’s decision in Students for Fair Admission v. Harvard and ways that academic institutions and employers can continue to promote DEI initiatives and remain compliant with this new legal precedent. Moderated by Jimmy Robinson Jr. of Ogletree Deakins, the session was paneled by Dean A. Benjamin Spencer of the College of William and Mary Law School and Jim Stuckey of Dominion Energy.

Robinson noted the shock that zealous advocates have dissected and eliminated diversity programs and considerations, noting the reaction was like the dismantling of women’s health care with Roe v. Wade overturn. Dean Spencer summed up the industry response to holding with academic leaders in dismay. “There is a lot of pessimism as this arrangement with affirmative action (race as a plus factor) were around for a long time and created impressive results. The strongest impact was at highly selective admissions schools not every school. Schools not oriented to selective admissions but for access have seen less of an impact.” He was not as upset at the SCOTUS decision. Those that were upset seemed to be admitting based on race, as he thought it was a disservice to school and to students.

Dean Spencer noted that many students were dismayed at the decision and that he had to calibrate discussion amongst students. “Remember that median means those above the number and those below the number. Once you sort by numbers, you get a set of candidates that meet and exceed those numbers. With that list, you set the numbers aside, we look through the applications and the essays. What are these people about? Is the student first generation, low income, served in the military? If results skew in one race or demographic, the results are skewed, and we have to recalibrate the recruiting strategy.”

Stuckey noted a varied reaction to the Supreme Court decision in the business community. Some businesses were in panic mode, some weren’t, and many were in the middle, he observed. Corporations were anticipating this decision based on court composition. Most alarming was the degree of confusion on DEI and what that meant. Unhelpful developments were closing DEI progress that was sparked by the murder of George Floyd. Most DEI initiatives continue and are developing ways to get better pools of diverse talent. He noted that Dominion needs skilled and talented suppliers, good relations with its community, and diverse employees, therefore the DEI initiatives need to continue.

When asked about Justice Gorsuch’s concurrence that stated that Title VI and Title VII have the same language and both could be dismantled and about letters and AG opinions stating that corporate America DEI programs are destructive, Stuckey noted that looking at the programs themselves, there is little to be of concern. “DEI is one side, but discrimination is still illegal. For example, an enterprise fund targets African American female entrepreneurs, .035 percent of all entrepreneurs. An opponent can use the other side’s argument to show that discrimination still exists.”

In the face of recent challenges to Diversity, Equity, and Inclusion (DEI) initiatives, leaders across various sectors are grappling with how to maintain progress while navigating a changing legal and social landscape.

Stuckey pointed out the cyclical nature of social progress: “Progressive victories followed by conservative retrenchment, that is the cycle.” He emphasized that while the Supreme Court has provided a framework for achieving equal opportunity, the political process has made things more challenging.

Dean Spencer highlighted the institution's efforts to reconcile with its history of slavery through the Lemon Project and the creation of the Lemon Scholarship for HBCU graduates. He noted the difficulties in recruiting underrepresented groups and the need for commitment and effort in these endeavors.

The conversation touched on recent legal challenges to DEI programs. Stuckey advised that companies need to balance stakeholder needs with shareholder interests, emphasizing the importance of having “great outside counsel about how to comply with law and how to serve needs of customers, shareholders, employees, and regulators through lawful means.”

When asked about maintaining focus amidst legal attacks, Stuckey stressed the importance of established company guidelines and processes for determining affiliations and group associations that align with business objectives.

Looking ahead, Dean Spencer remains optimistic, citing his success in increasing diversity at his institution without using race as a basis for admissions. He emphasizes the crucial role of committed decision-makers in achieving diversity goals. Stuckey suggests revisiting the definition of diversity to closely tie it to business needs, considering various stakeholders. He emphasizes the importance of strong pipelines and community engagement to prepare for social events.

The excerpt concluded with a reminder that each organization's DEI journey is unique, and programs should be tailored to specific needs while staying within legal boundaries. It cautioned against using quotas or set asides, which are not legally permissible.