Last year, the U.S. Supreme Court struck down affirmative action in a landmark ruling, effectively ending race-based college admissions.
But what was meant to be a law targeting higher education institutions may have impacted other industries.
Some experts say in the year since June 2023, the decision has had ripple effects that go beyond higher education. The full extent of the ruling’s implications has yet to be seen.
When the court handed down its decision, Michael Kippins, a litigation fellow for Lawyers for Civil Rights, along with others in his organization, worried about the impact the decision would have on the “racial climate on campuses” and admissions rates for people of color. Equally concerning was the potential effect on areas outside academia.
While the Supreme Court’s decision was aimed at higher education institutions, Kippins said, some parties have pushed it past its stated boundaries, with some opposing targeted opportunities for people of color in corporate settings.
“We’ve seen some challenges by conservative groups to push the agenda beyond what we have seen in the Supreme Court’s decision … and we have seen challenges in the areas of employment, in the area of procurement for government contracts, and in the financing and lending spaces,” he said.
Carla
Reeves, a director at law firm Goulston & Storrs and an employment
litigator, said in the last year, she has witnessed people link the
Supreme Court’s decision to DEI initiatives in the private sector.
“We
immediately saw people connecting those dots and trying to leverage
this higher-ed decision in a way that has a very real, immediate impact
on the workforce,” she said. “And I think that impact, for some, was a
chilling effect.”
Reeves
pointed to a case brought against Fearless Fund, a venture capital firm
investing in businesses owned by women of color, in which she said the
affirmative action case was referenced.
In
June, an appeals court ruled that a grant program for Black women
offered by the firm was discriminatory. The plaintiff in the case,
American Alliance for Equal Rights, is led by conservative activist
Edward Blum, who spearheaded the case against affirmative action.
“They
are looking for ways to sort of chip away at efforts that have been
made over time,” Reeves said, adding that workplaces across different
industries are revisiting their internal DEI procedures and discussing
how to proceed.
There
is a “legally compliant way” to uphold DEI practices, Reeves said, and
the decision shouldn’t prevent employers from continuing the efforts
they’ve invested time and money in. She said she sees an opportunity for
employers to reflect on their priorities and use the available tools to
uphold their values.
“This
decision [was] a reminder that we have to remain vigilant and also just
be very creative and thoughtful … I don’t think that withdrawing
support for these efforts … is the answer here,” she said.
Shayla
Mombeleur, secretary of the Massachusetts Bar Association and a trial
attorney at Todd & Weld, shared a similar sentiment.
“We’re
still at a moment where we’re still watching and learning,” she said of
the influence the ruling might have down the line, but “the most
important thing, in my view, is for people to still stand strong in
their DEI practices, with, of course, being thoughtful of the legal
landscape.”
Mombeleur,
who has cochaired her firm’s DEI committee, said she saw the Supreme
Court’s decision as an undoing of the work advocates have done to level
the playing field in academia and the job sector, much of that work
centering on removing the barriers faced by people of color.
She lauded the schools that, in the wake of the Supreme
Court’s decision, published statements reaffirming their stances on DEI,
balancing the changes required by the law with their internal values.
Like
Kippins and Reeves, Mombeleur said she worried the decision would have
widespread effects, but whether those initial fears will fully
materialize is unclear.
After
the ruling, school officials grappled with how to “articulate the value
of diversity and inclusion” on campus while complying with the law,
said Harvey Young, dean of the College of Fine Arts at Boston
University.
“The
conversation [was] really centered on, ‘How do we express our
commitments to inclusion, to access, to having people from different
walks of life and experiences be in rooms together, in conversation and
dialogue?’” he said.
In his leadership role, he worked to emphasize that
students in the program were accepted because of their academic merits
and to reinforce his college’s commitment to “diversity of ideas and
experiences.”
There
exists a narrative that people of color who benefited from affirmative
action were admitted into positions for which they were unqualified, he
said, when in fact accepted students have historically been
“exceptional.” His fear, he added, is that without the legal stamp of
affirmative action, not all institutions will continue to make an effort
to foster a diverse student body.
“You
can remove a box pretty easily from an application,” Young said,
referring to the change required by the law. “However, the real proof of
whether or not you as an institution are committed isn’t about who you
admit … it’s ‘What messaging are you putting out to the world?’”
Here
in Boston, Northeastern University and Boston College were also among
the group of schools that responded to the Supreme Court’s ruling with
statements voicing their commitment to diversity.
Looking ahead, Kippins, the litigation fellow with Lawyers for Civil Rights, said a similar pattern will persist.
“What
we’ll see is that schools who are very devoted and inspired and
thoughtful about how to recruit and retain applicants and students of
color will continue to do so. They will make the effort,” he said,
adding that higher education plays a key role in creating opportunities
for historically marginalized groups.
A
recent report by Common App, a higher education nonprofit, shows an
increase in the number of students of color who have applied to
four-year colleges since June 2023. The report does not state enrollment
numbers.
Given that
the Supreme Court’s ruling is only a year old, Kippins said, it
continues to generate varying interpretations that may have effects
beyond colleges and universities.
“There
are boundaries that will need to be set and reset,” he said, “and we
will likely see challenges outside of the higher education context going
forward the same way that we’ve seen them already.”