Today, the Supreme Court ruled against the consideration of race as a factor in the college admissions process, overturning decades of affirmative action policies. While this decision undoubtedly has a direct impact on colleges and universities, experts say that overturning affirmative action at the collegiate level will inevitably and detrimentally impact ongoing diversity efforts in corporate America.
“As a sort of technical matter, the court’s decision will not directly constrain private employers from considering race when hiring. But, it would suggest that considering race is actionable discrimination under Title VII of The Civil Rights Act of 1964,” says UC Berkeley Law Professor Dr. Khiara M. Bridges. “So that means that private employers, if they're risk-averse like many of them are, will reconsider the programs that they might be pursuing to make their workplaces more equitable and more racially heterogeneous.”
However, Kendra Mitchell, Chief People Officer at Chief, makes it clear that leaders should not use this decision as an excuse to “reduce or altogether abandon their focus on building and sustaining diverse teams.”
At the center of the court’s decision were two cases that involved the Students for Fair Admissions, Inc. suing Harvard University and the University of North Carolina for unfairly using race in their admissions process at the detriment of Asian students.
“The two are not mutually exclusive. We can have race-based affirmative action programs, while also having programs that recognize that many groups of Asians in America are discriminated against,” says Dr. Bridges.
Despite what these cases may imply, most Asian Americans are in favor of affirmative action. According to a 2022 survey, released in part by AAPI Data, 69% favored affirmative action programs “designed to help Black people, women, and other minorities get better access to higher education.”
How Affirmative Action Has Benefitted More Than Just People of Color
While race has often been the focus of many anti-discrimination laws, it’s important to note that the Civil Rights Act of 1964 prohibits discrimination on the basis of both race and sex. While this law is intended to work on behalf of many people with intersecting identities, Dr. Bridges says that White women have benefitted the most from affirmative action policies.
“Sexism worked brilliantly to keep women out of workplaces, colleges, and universities,” she says. “So in order to kind of ameliorate that sad history — and the present history of sexism, misogyny, and patriarchy in the United States — colleges, universities, and employers tried to bring women into their spaces.”
In many cases, Dr. Bridges says, we’ve seen “where [institutions] would say they have an integrated space and they would point to White women as evidence of integration.” And while this would seem like an accomplishment to some, Dr. Bridges says that all this oversight did was make invisible the fact that Black, Latinx, Indigenous, trans, and many other people were excluded from that space.
One 1995 study even found that in the private sector, White women held a majority of managerial roles compared to Black, Latinx, and Asian workers after the first two decades of affirmative action. And even when looking at the highest ranks of leadership today, one in four C-Suite leaders are women, with just one in 20 of those leaders being women of color.
At the University of Michigan and the University of California, where affirmative action was banned more than 15 years ago, both schools say they’ve since struggled to build diverse classes. In fact, the University of California system says they’ve spent more than a half-billion dollars since 2004 to boost diversity, but their efforts have fallen abysmally short without affirmative action.
“There’s no question that DEI as a practice and priority is under attack,” says Mitchell. In addition to affirmative action, she says “one need only look to recent legislative attempts in Florida and Texas to ban DEI from universities and in some cases private companies to understand this.”
How Corporate Leaders Can Respond
Last year, more than 80 U.S. companies, including Apple, American Express, and General Electric, filed legal briefs asking the Supreme Court to uphold the use of affirmative action in the college admissions process as it’s critical to helping them build diverse workforces.
“If universities are not educating a diverse student body, then they are not educating many of the best,” company leaders wrote. “Today's markets require capitalizing on the racial and other diversity among us … Those efforts, in turn, contribute to the broader health of our nation's economy.”
According to a Harvard study, when affirmative action was repealed in four states between 1996 and 2008, the employment rate for Black, Latinx, and Asian workers decreased in those states. To ensure that doesn’t happen today, Heather Sounder Choi, Partner and Chief Diversity & Inclusion Officer at Baker Botts L.L.P., says “organizations truly committed to cultivating an inclusive culture that is representative of the communities we live and work in will need to be creative and resourceful.”
“We may see a greater emphasis on pipeline programs designed to expose students of all backgrounds to [different] career paths before they reach college or graduate school,” she says. At Chief, Mitchell points out that this is being done by partnering with nonprofits like Girls With Impact and Girls Inc., two organizations that drive greater gender and racial diversity in the next generation of leaders.
In addition to developing talent before the collegiate level, Dr. Bridges says that organizations should also expand the scope of where they look for new hires.
“It has been easy to look for talent in places that are considered the halls of power,” she says. “But when the law has constrained these places in a way where certain groups are going to be more absent from those spaces, then more work is placed on the shoulders of the private industry to look elsewhere.” Instead of relying on elite universities like Harvard, Yale, and Stanford, Dr. Bridges and Mitchell encourage employers to look at more community colleges, public state schools, Hispanic-Serving Institutions, Tribal Colleges, and historically Black colleges and universities for talent.
To further prioritize diversity in recruiting, Mitchell says employers can go one step further and drop their degree requirements, focusing more on building a skills-first workforce.
At IBM, former CEO and Chief speaker Ginni Rometty saw first-hand how a skills-first workforce is good for business. That’s why, as Co-Chair of One Ten, a coalition committed to upskilling, hiring, and promoting one million Black individuals by 2030 into family-sustaining jobs, she’s working to get other companies to do the same.
“It's an easy tick box on hiring to say, ‘Got a college degree?’ And yet 65% of Americans don't have one, and 80% of Black Americans do not have one,” Rometty told Chief. “But, this isn't just about new employees. As I reflected on how we were re-skilling, all IBMers were growing new skills.”
While there are many ways to prioritize diverse hiring amid an affirmative action ban, Dr. Bridges fears that rejecting the consideration of race in the college admissions process will only set precedent for more race-based lawsuits to come.
“What I'm worried about is that employers are going to try to do business as usual, and do the diversity training that they've always done, and then one employee is going to bring a lawsuit and challenge it under state or federal law setting off a wave of lawsuits,” she says. “And those lawsuits are much more likely to be decided in the plaintiff’s favor because of the Supreme Court's decision to prohibit race-based affirmative action. So I'm worried about what comes next.
“I think it's going to be a tragedy for colleges and universities to not be able to consider race, but what comes next from this will also be tragic and it will have a real impact on workplaces.”
Note: As a company, Chief released a statement on SCOTUS’ decision on LinkedIn, which can be viewed here. In line with Chief’s $1 million annual commitment to organizations aligned with our mission to change the face of leadership, we are making donations to The National Coalition on Black Civic Participation, Asian Americans Advancing Justice, Latino Justice, and National Congress of American Indians. These are organizations that either participated in the amicus briefs and/or work to advance racial diversity in higher education.
