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3 reasons not to panic after Students

In the wake of last year’s US Supreme Court case Students for Fair Admissions v. Harvard, effectively ending Affirmative Action in higher education, many organizations have begun to take a closer look at their DEI programs. While the decision only applied specifically to higher education admissions, some organizations are concerned about applicability to other industries and institutions. Is this anxiety founded? And if so, how should organizations respond?

In short – employers who do not use protected characteristics like race and sex when making concrete employment decisions, are free to promote a more inclusive culture and break down barriers preventing women, people of color, and other marginalized groups from thriving in their workplaces.

  1. Dept of Commerce. One clue as to whether this decision is expected to have broader applicability is the federal government’s response. Since this decision, the federal government has sought to continue to provide guidance on these issues. Specifically, last fall, the Department of Commerce requested public input on draft Business Diversity Principles, describing the Department’s recommended best practices related to diversity, equity, inclusion, and accessibility in the private sector, and on the impact of related initiatives. While comments are still being reviewed, the six principles (Executive Leadership, Organizational Strategy, Workforce Development, Human Resources, Business Opportunities, and Community Investment) outlined indicate that it is not a forgone conclusion that all DEI programs are null and void.
  2. Individual Lived Experiences can still be considered. Moreover, several practices intended to increase opportunities and remove barriers as a means of increasing diversity of all types were not ruled on by the Court, and still stand. Considering an individual’s lived experiences (including race and gender) is still possible. For example, medical schools can consider background factors tied to the school’s mission, like socioeconomic status of the community they grew up in, experiences with health inequities, socioeconomic status of their family of origin, and languages spoken at home.
  3. Inclusion efforts which benefit everyone can continue. Employers should note that antibias work, employee resource groups – open to anyone who supports the mission of the group, mentorship programs, or family-friendly policies, and policies focused on increasing psychological safety were not ruled on by the Court.

While DEI efforts are undoubtedly under closer scrutiny since Students, focusing on programs that benefit everyone, and that more targeted programs are focused on individual experiences, do not fall under the Court’s ruling.