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Hiring and DEI in the Wake of SCOTUS’s Affirmative Action Decision

In the last days of the 2022-2023 term, the Supreme Court issued its closely-watched decision on the legality of race-conscious affirmative action in college admissions. As expected, the court’s conservative majority ruled against the affirmative action policies, leaving many professionals in higher education and DEI work questioning what could come next.


Here’s what we know, what we don’t, and what this could mean for the future of work.


What We Know

On June 29, 2023, the Supreme Court ruled against two universities, Harvard University and the University of North Carolina, in a case hinging on the legality of affirmative action in college admissions. Writing for a 6-3 majority split along ideological lines, Chief Justice John Roberts opined that affirmative action, which considered race as a factor in college admissions, violated the Equal Protection Clause and did not offer “measurable” justifications to consider race. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented, critiquing “colorblindness” or neutrality as failing to account for the lived reality of race in America and saying the majority’s decision “rolls back decades of precedent and momentous progress.”


The decision effectively means race cannot be considered part of the college admissions process. It does not preclude students from discussing race as part of their overall “story,” although that could theoretically be challenged in later court cases.


Despite the decision, significant research shows that in various forms, affirmative action is both powerful and effective and, in some cases, necessary to achieve goals. One Georgetown University Center on Education and the Workforce study found that admissions models that expand, rather than reduce, race consciousness come closest to mirroring the population’s demographics. The same study found that, without race-conscious admissions, many institutions are unlikely to maintain even their current levels of diversity without completely upending the admissions process to eliminate privileged admissions and enormously expand the applicant pool.


As a veteran of higher education with over 30 years in the field, I have observed the evolution of affirmative action and DEI firsthand. In my experience, over time, with a focus on diversity, access, and inclusion at my universities, there was a noticeable recognition of the educational value a diverse student body presented.


New courses on race were introduced, which led to courses on women’s studies. Our extracurricular and cultural programming included more broadly defined programming, and more minority scholars were invited to speak. When our minority student population grew, their advocacy opened many doors for an entire student body to be educated and included in different ways. Social justice was no longer just theoretical but a meaningful path to discussion, understanding, and inclusion. Books and journal holdings were diversified in the library, and the topics of in-class discussions, research, and lectures shifted to include very different subject matters important to the whole-person development needed to contribute to the larger society.


We also know that approximately 60% of employees in the workforce believe that workforces should reflect the diversity of the communities in which they operate, according to research from the Heldrich Center for Workforce Development at Rutgers University.


What We Don’t Know

Currently, the SCOTUS ruling is specific to using race-based affirmative action as a factor in college admissions processes. It does not directly touch on other processes that may use race and affirmative action in higher education (for example, scholarships) or outside it (for example, hiring processes). However, there are two critical ways in which its effects are still largely unknown, especially concerning those who manage or make hiring decisions in the workforce.


First, we don’t know how the striking down of affirmative action admissions will affect the diversity of future talent pools. If, as some fear, the ruling results in less diverse classes of college graduates – particularly at highly competitive or specialized institutions – then, naturally, the pipeline of new talent could likewise become less diverse. The ruling could impact companies looking to improve diversity in their workforces by presenting a more homogenous group of candidates with the preferred degrees and/or credentials. Justice Sotomayor’s dissent specifically notes this possibility as follows:


“Today’s decision further entrenches racial inequality by making these pipelines to leadership roles less diverse. A college degree, particularly from an elite institution, carries with it the benefit of powerful networks and the opportunity for socioeconomic mobility… A less diverse pipeline to these top jobs accumulates wealth and power unequally across racial lines, exacerbating racial disparities in a society that already dispenses prestige and privilege based on race.”


Second, the willingness of the Supreme Court to insist that affirmative action is discriminatory or stereotyping (as opposed to a remedy for discrimination) could place the future of corporate diversity initiatives in question. It is certainly possible that questions about DEI incorporation into hiring will be raised and could potentially traverse through the same legal system.


What to Keep in Mind

 The specifics of the SCOTUS ruling leave many questions unanswered in higher education and the broader workforce as companies grapple with the continued need to improve diversity, inclusivity, and equity (and let’s not forget belonging). If nothing else, it’s an indication that the current makeup of the Supreme Court is amenable to dampening conscious efforts at improving diversity and access. It has always been important to ensure that DEI initiatives are nuanced, not just “quotas,” but this ruling could put even more pressure on DEI professionals to “prove” the value of their work.


Many of these questions and concerns are unlikely to be answered anytime soon. Still, it’s essential to remember how the pursuit of diversity – and everything that comes with it – benefits everyone, not just individuals from minority or underrepresented groups.


My experience at multiple institutions was that it wasn’t only our minority students who benefited. International students and white students (who had non-traditional profiles) were considered for admission when their profiles had often precluded them before. These students brought larger-than-life examples to the classroom for us all to learn from, including me as the professor.


Other positive outcomes emerged as the makeup of our faculty and administration shifted to include a more racially diverse workforce, expanding classroom discussions to the lunchroom. Perhaps one of the more significant aspects for enrollment professionals was allowing us to share statistics on our student composition truthfully. More and more, I found white students sought avenues (and enrollment) at schools with diverse student populations because they appreciated learning in those environments and expected to work in a diverse environment, too. Therefore, they viewed a mostly homogenous enrollment as a detractor from their education growth and college experience.


Ultimately, it boils down to that last observation: homogeneity is neither helpful nor desired by many, whether in the workforce or the classroom. This court ruling may make it more challenging to pursue the goals of a diverse, inclusive student body. Still, it is more important than ever to provide students with the opportunities and environment most likely to lead to a thriving and successful life.


By Jacquelyn D. Elliott, Ed.D.


About the Author

Dr. Elliott is a Higher Education subject matter expert across multiple functions, including Strategic Enrollment Management, Faculty, Financial Aid, Institutional Advancement, and Student and Academic Affairs. Dr. Elliott brings to the table a unique understanding of an institution’s need for specialized talent and the candidate’s desire to affect positive change. She has worked with more than 200 schools across the globe in a consulting capacity and has coached countless cabinet-level executives on strategy, job placement, meeting enrollment, net tuition, and fundraising goals.

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