“[W]hy were you talking about corporate America?”

The Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College ¹ Open footnote #1 1 Footnote #1 content: Transcript of Oral Argument at 98, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) (No. 20-1199) (Justice Alito questioning Solicitor General Prelogar). Citation: The Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College(SFFA) close (SFFA) will no doubt precipitate a battle royal over the legality of those aspects of the ubiquitous diversity, equity, and inclusion (DEI) programs of American businesses that involve the use of racial preferences in hiring or promotion. ² Open footnote #2 2 Footnote #2 content: 600 U.S. 181, 230 (2023) (holding that Harvard College and the University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment by giving preference to minority applicants in order to assemble a diverse student body and realize the attendant educational benefits). Citation: (DEI) programs of American businesses that involve the use of racial preferences in hiring or promotion. close The Supreme Court has never addressed the question whether an employer can lawfully give a preference to a Black applicant in pursuit of operational benefits, such as increased innovation or improved problem-solving, associated with a more racially diverse workforce. ³ Open footnote #3 3 Footnote #3 content: See, e.g., Frans Johansson & Claire Hastwell, Why Diverse and Inclusive Teams Are the Engines of Innovation, GREAT PLACE TO WORK (June 1, 2023), https://www.greatplacetowork.com/resources/blog/whydiverse-and-inclusive-teams-are-the-new-engines-of-innovation [https://perma.cc/JLD4-RXM8]. Citation: associated with a more racially diverse workforce. close The forces that have kept the issue out of the courts have shifted, and DEI programs are now squarely in the crosshairs of well-organized and well-funded opponents of racial preferences. ⁴ Open footnote #4 4 Footnote #4 content: See, e.g., Darreonna Davis, Two Law Firms Sued Over DEI Programs After Affirmative Action Overturned, FORBES (Aug. 23, 2023, 10:47 AM), https://www.forbes.com/sites/darreonnadavis/2023/08/22/two-law-firms-suedover-dei-programs-after-affirmative-action-overturned/?sh=67201fed1322 (discussing legal actions against two law firms’ diversity fellowship programs by the nonprofit American Alliance for Equal Rights). Citation: The forces that have kept the issue out of the courts have shifted, and DEI programs are now squarely in the crosshairs of well-organized and well-funded opponents of racial preferences. close

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