Is it the end of the road for affirmative action?

The Supreme Court says race cannot be used as a factor for admission into university - so does this spell the end for affirmative action in hiring too?

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Jul 11, 2023

Anyone who studies HR-related judgements by the Supreme Court will know that when decisions reach this high level, the verdicts ultimately given (whichever way they go), tend to make headlines.

And so it was the case, at the very end of June, when the US Supreme Court ruled on two similar cases involving admissions into universities – one concerning Harvard and the other at the University of North Carolina (UNC).

The reason the decisions made the news was entirely due to the fact these two innocuous-sounding cases struck right at the heart of the contentious topic of ‘positive discrimination’ or ‘affirmative action’ – that is when an organization takes specific measures to select people to join them in order to improve the ratio of under-represented groups – such as women or ethnic minorities.

Long-used as a way of bolstering representation (and as such, is a key lever many DEI leaders use), the policy of affirmative action is, according to Students for Fair Admissions (a body founded by legal activist Edward Blum – and which brought the cases), unfair to everyone else.

Not only this, it claimed affirmative action actually violates Title VI of the 1964 Civil Rights Act, which bars discrimination based on race, colour or national origin. There is some precedent to this. Nine US states already ban on race-based college admissions for precisely this reason: Arizona, California, Florida, Georgia, Oklahoma, New Hampshire, Michigan, Nebraska and Washington.

In their defense, both universities argued that universities also exist to promote and improve opportunity to everyone. Those from poorer backgrounds (which typically include black people) benefit – they claimed – from affirmative action, because it meant access was available to people who might otherwise not be considered – so improving social justice for all.

But in their verdicts, the Judges sensationally dismissed this – arguing that while they understood that the universities’ policies were “well intentioned,” these admissions criteria were nevertheless resting “on the pernicious stereotype that ‘a black student can usually bring something that a white person cannot offer,” and such they are “patently unconstitutional.” The court ruled 6-3 against UNC and 6-2 against Harvard.

“Universities’ self-proclaimed righteousness does not afford them license to discriminate on the basis of race,” said Justice Clarence Thomas, the nation’s second black justice.

Prior to the Supreme Court decision, 41.5% of all US universities and 60% of selective US universities considered race to some degree in their admissions decisions

Why this decision matters

For HRDs wondering why the admissions policy of a university matters to them, it’s all about potential knock-on effects when it comes to how businesses define their own recruitment criteria.

Students for Fair Admissions have hailed the ruling not to allow race to be a determinant of admission as a return to meritocracy, but in doing so, DEI heads may now have their already difficult jobs made even harder.

Should they continue to pursue a policy of preferential treatment of hiring under-represented groups? [Especially if reaching certain ethnicity targets is written into their DEI strategy].

Is the law still on their side to be able to do this?

Do firms risk a backlash from those who now regard affirmative action as unconstitutional?

To try and answer some of the questions TLNT spoke exclusively to Chandra Robinson, VP at Gartner.

Gartner has been following the cases in detail as they’ve wended their way through the courts:

Q: So, the verdict has been made – were you surprised at the way it went?

A: “The fact race may not be a determining factor in admissions anymore is a significant one, given that affirmative action is normally done to correct against any under-representation. We knew – from leaks about the deliberations – that the decision was imminent, and that it could go the way it ultimately went. Based on the make-up of the court and their typical leanings, there was also inkling that this would be the decision they would take, so in that sense it probably wasn’t a surprise.

Q: What are the ramifications of this for employers?

A: “Although there are no immediate reasons for organizations to stop the DEI aims and to prevent them being an equal opportunities employer, what I will think it will do is amplify the politicization around DEI. DEI leaders in the US should prepare for the possibility that the court may soon prohibit explicit considerations of race in hiring practices as well. Whether or not organizations have specific diversity targets that may face legal scrutiny, DEI leaders should clarify their recruiting goals, refine the processes used to achieve those goals, and communicate those processes to other parts of HR, legal and compliance to ensure a diverse and inclusive work environment.”

Q: Isn’t there also a fear that employer links with universities could be affected too?

A: “Absolutely. There are lots of potential ripple effects that need to be considered, which might not be apparent at first. For instance, companies often have university partnerships. If universities are now being curtailed to bring in underrepresented groups then this will obviously filter through into the eventual pool available from universities that companies can tap into. There will be a direct connection between this decision, and the recruitment pipeline that employers will be able to cultivate.

Q: Is affirmative action generally supported in America, and will companies that continue to pursue it now be frowned upon?

A: “Since George Floyd, we’ve seen companies create a wave of commitments around diversity, but I think organizations are now realising that there needs to be accountability for these hires too, and ensure they are seen to be fair. I think more recently, we’ve seen DEI leaders double down on consequential accountability [which evaluates HR leaders’ DE&I efforts and ties the success or failure of those efforts to job performance], in an attempt to prove that their policies have value. So I definitely think DEI leaders are going to need to be more intentional about consequential accountability going forwards.

Q: What else do companies now have to do?

A: “I think they will increasingly need to look at data, and determine a recruitment strategy that makes sense for the organization, including how biases may need to be mitigated where there is underrepresentation. HRDs will need to get comfortable with this data, so they can see where disparities exist, and then how certain interventions can be put in. The ultimate goal is still to identify the best talent out there, so DEI professionals have to make sure their recruitment efforts are consistent. Ultimately, it’s about seeing where imbalances exist.

Q: Do you think the already tough job of the DEI leader has now just been made even more complicated?

A: “I mean, yes! Downstream impacts of this do now exist. How organizations promote DEI, or partner with other organizations, or tap into diverse talent are all questions that have just gotten harder. We already know there are hurdles DEI leaders face (see TLNT article here), and we know DEI professionals already report fatigue, and stress, and lack of CEO buy-in. So yes, there are now new challenges to contend with, that won’t make life easier. But, DEI will continue, and I don’t foresee it going any time soon. Now it’s all about how these leaders progress it.

“The recent U.S. Supreme Court rulings may affect public perceptions of DEI activities and how organizations in the U.S. recruit and support underrepresented talent. DEI leaders must understand the potential effects on organizations and how they can respond now and in the long run.”

– Crystal Styron, senior principal, Gartner’s HR function, strategy and management research team

Gartner’s advice:

Gartner suggests:

  • Creating alternative processes to numerical targets – for instance creating employer resource groups; diverse interview panels and peer referral systems.
  • Coordinating with other HR leaders, senior leadership and communications teams on whether or not to issue any public messaging regarding the rulings.
  • Grounding internal and external messaging in the organization’s corporate, and especially DEI, values.
  • Considering addressing public sentiment through a town hall or other organization-wide forums.
  • Ensuring line managers have the information and tools they need to manage workforce tensions surrounding public perceptions of DEI initiatives (for more information
  • Facilitating moments of emotional proximity — when employees feel valued and important to others — and enhancing these moments wherever they take place.
  • Creating a DEI framework centered on communication sharing, empathy building and continuous development.