(C) Virginia Mercury
This story was originally published by Virginia Mercury and is unaltered.
 . . . . . . . . . .



The fall of affirmative action in higher education and the coming workplace revolution [1]

['More From Author', 'June', 'Guest Column']

Date: 2023-06-15  

By Faith Alejandro & Cullen Seltzer

In the coming days, the Supreme Court of the United States is poised to decide the fate of affirmative action in higher education. Employers in Virginia, however, should pay attention to the Harvard and University of North Carolina cases now pending, as the Students for Fair Admissions alleges that these universities unlawfully rejected white and Asian students on the basis of race. The ways that Virginia employers implement diversity, equity and inclusion programs could be drastically affected, if the high court agrees with the student group’s allegation.

In both cases, the universities proved that they used holistic application processes that considered race as merely one factor in admissions decisions. That’s in line with 45-year old precedent allowing them to do so. The schools proved that they considered, but rejected, race-neutral alternatives that were shown to be ineffective in building a diverse student body.

Beginning with the case of Regents of the University of California v. Bakke in 1978, and reaffirmed in Grutter v. Bollinger in 2003, higher education institutions have been able to legally justify affirmative action programs that consider race as a “plus” factor to increase diversity in their student bodies. The high court recognized then that diversity, in and of itself, was a “compelling state interest” because diversity makes a student body better equipped, productive, and successful.

It is no surprise, therefore, that the “business case” for diversity and the benefits it offers abounds as justification for voluntary affirmative action programs in the American workplace. Indeed, employers largely recognize the value of fostering diverse, equitable, and inclusive (“DEI”) workplaces, as research shows that DEI can improve client service with smarter teams who solve problems faster and achieve greater employee engagement and satisfaction.

We anticipate, though, that the conservative majority of the Supreme Court will soon decide that the value of diversity is no longer enough to justify race-conscious affirmative action. During oral arguments, many of the justices questioned the efficacy of these policies. Several expressed concerns that these admissions policies may have harmed Asian-American students — notwithstanding the lower courts’ findings that these schools did not engage in such discrimination. (Notably, Harvard just accepted a record number of Asian-American students this year.)

If, in fact, the Supreme Court agrees in the coming days that diversity,as a goal, is no longer a compelling state interest, how should Virginia employers respond? Here are three potential replies:

“We should change nothing about our DEI initiatives because the Harvard and UNC cases concern higher education, not employment.”

While this may be true, it is not a giant logical leap that the rejection of diversity as a goal in higher education may result in a similar rejection in employment. After all, Title VI federal higher education law and Title VII federal employment law have developed in similar fashion over the years.

“Affirmative Action is dead. Employers need to stop all DEI efforts immediately to avoid getting sued.”

Employers who react too quickly may view this as the prudent approach and miss the opportunity to fully unpack the Court’s ruling. For example, may DEI initiatives be permissible if they take into consideration applicants’ socio-economic disadvantages? May those policies be permissible even if employers hope to increase racial diversity but don’t explicitly consider race? Plus, abandoning all DEI efforts may result in policies and practices that disparately affect protected classes, which could expose employers to a discrimination claims.

“We should evaluate the effectiveness of our DEI initiatives and make sure our historical and business justification for DEI is sound, documented and legally compliant.”

This approach, we believe, would give Virginia employers the best chance of following through on their DEI objectives while taking the time to understand their risk in this evolving landscape. After all, unlike higher education law, employment law recognizes that employers can justify affirmative action plans if they can demonstrate a “manifest imbalance” in “traditionally segregated job categories.”

Employers in Virginia should take the time, now, to evaluate their corporate values and recommit to DEI initiatives that bring about authentic, meaningful change. Merely performative plans could otherwise be in future peril legally, or at best, ineffective.

Minority-owned businesses, as well, should prepare given that their eligibility to participate in Virginia’s SWaM (Small, Woman and Minority Owned) business loan funds may be compromised. After all, those Virginia businesses’ access to SWaM loans hinges directly on proof of business ownership by women or ethnic or racial minorities. Virginia’s General Assembly may have to take steps to protect its public policy commitment to promote SWaM businesses if SCOTUS declares race-conscious policies to be unconstitutional.

It is important to recognize that 45 years ago in the groundbreaking Bakke case, the Supreme Court concluded that remedying the ills of past unlawful discrimination was not enough to justify affirmative action by entities if they were not, themselves, guilty of historic discrimination. That ruling gave rise to today’s alternative basis for affirmative action: the benefits of diversity.

Employers and others have relied on that precedent in thousands of contexts to develop policies intended to both comply with constitutional restrictions and redress long standing systemic biases. Nevertheless, the high court has recently shown itself willing to set aside precedent when it determines doing so is warranted by either changed circumstances or the court’s evolving understanding of the Constitution’s requirements.

It remains to be seen whether modern employers – who recognize that the country’s past sins of discrimination enabled at least some of their own economic, social, and political advantages – may affirmatively act to remedy those sins. Whether and how employers can try to remedy that legacy and promote equity is very much on the Supreme Court’s docket right now.

Faith Alejandro is an employment litigator in Richmond, Virginia representing businesses, governments and nonprofits and is a frequent speaker on diversity, equity and inclusion in the workplace. Cullen Seltzer is a litigator in Richmond, Virginia and an adjunct professor at the University of Richmond Law School where he teaches professional ethics.

[END]
---
[1] Url: https://www.virginiamercury.com/2023/06/15/the-fall-of-affirmative-action-in-higher-education-and-the-coming-workplace-revolution/

Published and (C) by Virginia Mercury
Content appears here under this condition or license: Creative Commons BY-NC-ND 4.0.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/virginiamercury/