Diversity, equity and inclusion (DEI) efforts face significant challenges today: corporations moving away from DEI investments, the U.S. Supreme Court’s decision invalidating racial preferencing in college admissions and states passing legislation to prohibit DEI policies and programming on college campuses.
We can add another new front in the effort to unwind the public and private sectors from the highly charged and divisive DEI framework that promotes unequal, unfair treatment based on race: the battle between attorneys general of red and blue states over law school admissions policies.
The American Bar Association (ABA) is reassessing its guidelines for law school accreditation in light of the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Harvard (SFFA). It is considering shifting away from “diversity and inclusion” and toward access for “all persons.” This includes expanding the number of “identity characteristics” from three—gender, race and ethnicity—to 14, those three plus color, religion, national origin, gender identity, gender expression, sexual orientation, age, disability, military status, Native American tribal citizenship and socioeconomic background.
In June, Tennessee Attorney General Jonathan Skrmetti, along with AGs from Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia—sent a letter calling for the ABA to remove race-based criteria from its law school accreditation process. The AGs urged the legal accrediting body to return to race-neutral admissions policies in light of SFFA, writing:
“One standard in particular—Standard 206, Diversity and Inclusion—fails to account for SFFA and, by all appearances, directs law-school administrators to violate both the Constitution and Title VII. … While we support the Council’s willingness to modify Standard 206, the proposed revisions reemphasize Standard 206’s problematic requirement that law schools engage in race-based admissions and hiring.”
These AGs recognized in their letter that “diversity is not without benefit” and suggested other types of diversity, such as socioeconomic and geographic diversity, can be pursued through race-neutral means. However, they concluded the ABA’s current “calls to calibrate classes and faculty based on race fly in the face of the Constitution.”
These AGs rightly adopt the wider view of diversity we at the Roundtable ascribe to: True Diversity. True Diversity goes beyond the superficial categories of race and gender to look at all the facets that make individuals unique, including backgrounds, perspectives and lived experiences. These unique differences, when reflected in professors and students, can enrich the academic environment on campuses and shape the legal profession.
Unfortunately, not everyone agrees. Other state AGs led by Illinois Attorney General Kwame Raoul penned a rebuttal letter to the ABA, Fortune 100 CEOs and other organizations to refute their Republican colleagues’ letter and remind these bodies of their commitment to DEI:
“The undersigned 19 Attorneys General write to reaffirm our commitment to ensuring that diversity, equity and inclusion programs continue to effectively address discrimination throughout the private and philanthropic sector. We also write to respond to coordinated attempts to contort the law and invalidate programs aimed at eliminating and preventing racial inequities.”
Joining Illinois were California, Connecticut, Colorado, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington and Washington, D.C.
These 19 AGs challenged the idea that higher education institutions “are barred from undertaking recruitment efforts to encourage a diverse applicant pool, or from creating non-hostile educational environments for underrepresented groups.” They confirmed that SFFA does not apply to corporate America, and therefore corporate DEI programs should not be abandoned.
In light of these dueling perspectives from the top prosecutors from the largest states in the nation, organizations may feel stuck between a rock and a hard place.
While diversity efforts have been around for generations, DEI is a more recent manifestation that calls for the unequal and unconstitutional treatment of Americans.
In the philanthropic sector, foundations and donors committed upwards of $17 billion for racial justice in 2021 out of responses to the death of George Floyd. Some of these DEI-focused pledges included targeted grantmaking, racial and gender hiring goals and leadership changes in pursuit of equity, even if at the expense of mission and tested grantmaking practices. The outcomes remain to be seen.
The approval of using DEI programs to advance racial progress and gender parity is not settled. The Supreme Court will likely have to wade into the debate again, as it did with the SFFA, to bring clarity. As the public and private sectors continue to grapple with these challenges to DEI and diversity programs, philanthropic organizations would be wise to reaffirm their commitment to equality under the law. After all, the eyes of the law are watching.
Philanthropy Roundtable’s True Diversity initiative is an equality-based, holistic framework for embracing diversity. It values every person as a unique individual and empowers charitable organizations with the freedom and flexibility to advance their missions and help those in need.
