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Doubling Down on DEI in the Shifting Legal Landscape

Aparna

Published on

05 - 10 - 2024

Author’s rendition of the anti-DEI monster (a/k/a Froghemoth from Dungeons & Dragons, a green monster with a frog face and body and multiple tentacles))
Image description: author’s rendition of the anti-DEI monster (a/k/a Froghemoth from Dungeons & Dragons)

By aparna rajagopal

Nearly every day, clients and community members are asking us what to do in the face of the public and legal backlash against DEI. With the increasing frequency of these conversations and the shift in tenor from curiosity to genuine concern, we felt we ought to write something about this now.  

The contemporary anti-DEI movement is only one iteration of centuries-long opposition to social justice movements in the U.S. In recent history, this movement has attacked education on racism and histories of enslavement in public schools, library books, gender affirming care, trans inclusive bathroom policies, reproductive rights, anti-racism training in government agencies, and more. 

The current backlash against DEI was punctuated by the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) banning Harvard University and the University of North Carolina’s affirmative action college admissions policies. The SFFA decision sparked financial, social, and legal momentum from powerful far right political action groups and individuals—including Edward Blum (the founder of SFFA), the Pacific Legal Foundation, and the Federalist Society—who have bankrolled lawsuits and advocacy against DEI policies in courts and legislatures across the country.

Though what we’re seeing today is not new, the rhetoric against DEI and the tools used to fight it have evolved over time. We have legal experience on our team and have been keeping close tabs on the legal landscape of DEI work, so we thought we’d share some of what we’ve learned to support you in being informed and doubling down on DEI, rather than hunkering down in fear. 

One disclaimer before we continue is that this is not legal advice.

First and foremost, remember that these anti-DEI groups want us to be afraid. At the recent Othering and Belonging conference held in Oakland, California, Cathy Albisa from Race Forward noted that “the legislation is getting wilder and stranger because they are panicking.” They—those who oppose our work—are panicking because DEI efforts are working. As we all work to daylight how everyday practices and norms maintain racism, sexism, and other systems of power, those who have been relying on these norms to uphold their positions of power are having to engage in extensive mental gymnastics to maintain their power. 

This is the gist of the anti-DEI movement: it’s basically a collection of stories, narratives, morals, and frameworks by people in power who are unwilling to face the (ill)logic of oppression. And in response, they are using the power of their dollars to try and chill DEI efforts across various sectors. But there is no cause to chill our efforts. Let’s dial our collective panic down a notch and unpack what’s actually happening.

“Does the SFFA Supreme Court case apply to my DEI efforts?” 

Likely, no! The story we hear is, “the Supreme Court struck down DEI.” The reality is that the SFFA decision only directly applies to college admissions at non-military universities. The decision does not apply to a vast majority of the work we are trying to do. The story should not outshine reality. 

Specifically:

  • SFFA only applies to race-based policies, and not race-conscious policies. Race-based policies are those that name race as a primary criteria for decision-making, whereas race-conscious policies consider the impacts of race and racism to level the playing field. Some examples of race-conscious actions include affinity groups or employee resource groups, equitable hiring, evaluation, promotion, and pay practices. In fact, the Equal Employment Opportunity Commission has assured the public that “it remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”
  • SFFA does not prohibit an organization from considering someone’s race if their lived experience contributes to the position. Specifically, the Court explicitly said that universities can still consider an applicant’s lived experience as a person of color, because “how race affected his or her life, be it through discrimination, inspiration, or otherwise” could indicate “courage and determination,” or “that student’s unique ability to contribute to the university.” 
  • Though SFFA does apply to work funded by federal dollars, it does not apply to non-federally funded programs of private entities or nonprofits. The law interpreted by the Supreme Court in SFFA—the Equal Protection Clause of the 14th Amendment—is only applicable to federal agencies and federally funded programs. 
  • SFFA only applies to race, and does not apply to equity measures focused on gender, sexual orientation, ability, and other identities. 

“But I don’t want to get sued!” 

We cannot guarantee immunity from suit (not in the litigious landscape we live in), but we can at least try to courageously move forward with workarounds that acknowledge the reality we live in. When I think about fear of being sued, I remind myself that the entire reason laws like the 14th Amendment and Title VII of the Civil Rights Act were passed was to provide legal recourse to marginalized communities who have experienced systemic barriers and mistreatment. I remind myself of all the moments when Black and brown communities have garnered legislative and litigation wins that have been backed by federal civil rights laws. The fact that far right political action groups are now weaponizing civil rights and equal protection laws in attempts to uphold discrimination and inequity shouldn’t dampen DEI efforts. 

We can also take solace in the fact that the Supreme Court is refusing to hear appeals of lower court decisions upholding policies that are race-conscious, rather than race-based. This includes a Virginia high school’s policy guaranteeing seats to top performers at all middle schools (a policy designed to eliminate race barriers) and the College for All Texans state program that guarantees college admission to the top ten percent of all Texas high schools. 

“How do we move forward with DEI given current lawsuits?” 

At this moment, it behooves us to keep tabs on what is happening in courts in our respective jurisdictions to see how vulnerable DEI efforts are. In the meanwhile, there are still actions we can all take now to further DEI work in the current legal landscape. 

  • TLDR: Center equity (and not diversity) in your work. Equity is the work and that diversity is just one possible outcome of the work. In addition, name the specific barrier your equity initiative is designed to address, and have some research or studies on hand that specifically show why your program is justified
    • Why? The SFFA decision focused on how to interpret the Equal Protection Clause. Though the Clause itself is race neutral (“no State can deny any person the equal protection of law”), courts have for decades made exceptions to uphold equity-centered policies and initiatives that are (1) narrowly tailored (2) to achieve a compelling state interest. In SFFA, the court said racial diversity in a student body was not a compelling state interest to justify affirmative action college admission policies. In a recent Texas federal court decision citing SFFA, a judge added that remedying past discrimination in this country is also too general and that the policy in question must address “specific acts of discrimination” that the government either directly or passively participated in. The Texas judge (citing Mark Twain’s “timeless warning that there are ‘lies, damn lies, and statistics”) added that general disparity studies don’t “cut it.” Despite hot air and colloquialisms in its order, the Texas court stated that remedying past discrimination in government contracting is a compelling governmental interest. The Texas decision is concerning because the Court stated that SFFA could apply to situations involving federal funding beyond college admissions, including government contracting policies.
  • TLDR: In recruitment, hiring, and funding, create policies that aim to broaden and diversify candidate and applicant pools, rather than setting numerical goals for the ultimate candidate or applicant who is selected. In HR Policies in particular, continue to implement strategies to mitigate bias in the hiring, evaluation, and promotions process, because a discrimination report card found that racial and gender biases persist. This means it is important to continue implementing strategies such as marking out names in resumes during the screening process and ensuring you have a multi-person hiring committee and a rubric, all of which and more are detailed in our toolkit on hiring here.  
  • TLDR: Instead of requiring that a certain percentage of contracts be awarded to minority-owned or socially disadvantaged businesses, you can better insulate yourself by requiring that the bidding pool include a diversity of bidders prior to closing the bidding process. The Pacific Legal Foundation really likes to use the words “set-asides” as shorthand for all efforts to prioritize racially marginalized businesses, so we’d also recommend not using that term. In addition, your procurement policies can continue to advance equity in other ways, such as: outreach to increase awareness of your bids; breaking larger contracts up into smaller contracts to support smaller businesses; utilizing best value contracting rather than lowest bid contracting; mitigating awards to pass-through entities that exploit smaller businesses; and reducing onerous requirements for bidders. Also take note that despite these lawsuits, diversity supplier programs are still alive and well (and even required!) in numerous jurisdictions. For example, in Oregon (where we are based), the Certification Office for Business Inclusion and Diversity is still administering its programs, and as a minority and women-owned business, we are thankful!
  • TLDR: In funding and procurement policies, avoid defining disadvantaged communities based solely on race. Adopt an intersectional approach; meaning, consider identities beyond race based on which people might experience disadvantages (including gender, class background, English language fluency, educational background, sexual orientation, ability, and more).
    • Why? Other than the fact that the far right is seeding the Southern federal courts, one important aspect of both of MBDA and SBA programs that were the targets of the Texas and Tennessee lawsuits above is that they determined whether a business is “socially disadvantaged” based solely on the race of the business owner. In both cases, the federal judges stated that you cannot conflate race with being socially disadvantaged. 
  • TLDR:. In fellowships, internships, recruitment and hiring, and funding, rather than focusing explicitly on people of color, articulate your “why” and prioritize the lived experiences of the candidates/applicants. If you want someone with lived experience working within a community that is an essential part of your constituency, then name “lived experience” as a qualification. We recently urged a funder to not solely make decisions based on a grantee’s racial identity, but rather, to ask prospective grantees about historic barriers they have experienced to resources provided by the grant. The grant application we developed for them now includes questions about family structures, logistical barriers, transportation barriers, physical barriers, financial barriers, and whether the applicants are eligible for state benefits programs designated for low income families. The application also asks about identities beyond race, including gender, sexual orientation, veteran status, and age. Our hope is that prioritizing grants based on applicants’ answers to all of these questions in totality should insulate the policy from the current legal attacks, which are directed at race-based policies. 
  • TLDR: Use alternative data to demonstrate racial barriers. There are so many data points that can serve as proxies for race and other marginalized identities in your equity efforts. In addition to redlining and health impacts, you can also prioritize communities/neighborhoods experiencing environmental injustices like lack of clean water, air, or flooding, and more.  
    • Why? Although programs focused on hiring and funding people of color might be under legal scrutiny, programs that aim to address historic inequities by prioritizing factors other than race are not subject to the same level of scrutiny. Examples provided in a presentation by Just Solutions on the impacts of SFFA on leading with race in climate justice efforts include a grant program that prioritizes funding to areas that were historically red-lined, face greater energy burden, have lower family incomes, and greater asthma rates. 

“What do I do in light of all the anti-DEI legislation in my state?”

Anti-DEI legislation has been promulgated by both Congress and state legislatures since well before SFFA. The UCLA Law School’s CRT Forward database and the Chronicle of Higher Education DEI Legislation Tracker are two trackers that provide robust tracking of anti-DEI legislation across the country. Though we aren’t tracking all of the bills that are being introduced across state legislatures, we’ve noticed that in addition to prohibiting the considering race in admissions or employment (which we’ve addressed above): there are two other themes in this legislation: (1) prohibition of DEI trainings; (2) dismantling of DEI offices and departments. To mitigate the impact of such legislation on your DEI strategy, we have a couple of recommendations:

  • Engage in equity work outside of your “DEI department:”  Though DEI Departments serve important and effective functions of shepherding and guiding DEI work within organizations, pigeonholing all equity work into one department titled “DEI” is not a sustainable approach. Inequities exist across all aspects of an organization, both operational and programmatic, so equity work is the purview of all departments and programs within organizations and should not be relegated to a DEI department. Continuing to do equity work across your organization should insulate you from targeted attacks on “DEI programs.”
  • Use alternative language to “DEI:” This moment calls for us to be both creative and intentional in our use of “DEI.” Ambiguity does a disservice to us all, and precision can  help insulate our efforts from frivolous lawsuits and nonsensical legislation. “Fairness” can describe efforts to address historic power imbalances that have harmed some communities. “Belonging” can describe efforts to foster inclusive and welcoming spaces for both your internal community of staff, volunteers, board members, etc. as well as your external constituency. “Collaboration” or “bridging” can refer to efforts to build bridges with diverse groups along values divides and political affiliation. “Environmental justice” can describe your efforts to address disproportionate harm to frontline communities resulting from natural resource extraction, environmental degradation, climate change and more. “Community-centered work” can refer to efforts to engage more diverse communities and center their needs and voices in your programmatic work.
  • Be precise with your training descriptions & outcomes: Though SFFA doesn’t speak to DEI trainings, critical race theory and education is still under attack in legislatures. So we can be proactive with our trainings. Rather than running general “DEI trainings,” describe the specific topic of your training and aim for an intersectional approach that addresses inequities based on multiple identities beyond race. This is not to say race is not important, or that you shouldn’t lead with race. Rather, think about what you want your participants to leave the trainings with. For example, we have workshops on “building bridges across values divides,” “navigating difficult conversations,” “reckoning with intersecting histories of injustice and environmentalism,” “effective community engagement,” and “grappling with unconscious bias.” 

This article is focused on technical workarounds to what are actually systemic issues that require adaptive solutions. There is a lot more we want to say about the backlash against DEI. We want to unpack the flimsiness of the anti-DEI rhetoric and use this opportunity to identify how some approaches to DEI have made us more vulnerable to attack. But for now, we hope this piece gives you some peace of mind and guidance as you forge ahead with DEI in your organization or agency. In the meanwhile, we’ll keep an eye on the lawsuits and legislation bubbling up across the country and let you know what more we learn.

More resources: