On June 29, 2023, the United States Supreme Court decided Students for Fair Admissions, Inc. v. President & Fellows of Harvard College,[fn 1] holding that the admissions programs instituted by Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the United States Constitution. In so holding, the Court struck down affirmative action in college admissions and effectively overruled its prior decisions in Grutter v. Bollinger[fn2] and Regents of the University of California v. Bakke.[fn 3]
While the Supreme Court’s decision invalidated race-based admissions programs in which some students may obtain preferences on the basis of race alone, the majority expressly stated, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[fn 4] However, it also cautioned that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”[fn 5]
In the weeks and months following the Court’s decision, lawyers across America have worked to predict its reach. Although decided on equal protection grounds, many have predicted that the Court’s central holding—that race-based admissions programs in which some students may obtain preferences on the basis of race alone are unconstitutional—may extend beyond higher education to the workplace, nonprofits and even private organizations in certain contexts.
But hours after the Supreme Court issued its decision, U.S. Equal Employment Opportunity Commission (“EEOC”) Chair Charlotte A. Burrows issued a statement that “[i]t remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”[fn 6]
So where does that leave us?
In due course, as other cases make their way through the court system, we will have further guidance from our courts on the reach of the Supreme Court’s decision. In the meantime, we must determine how to govern ourselves and how to advise our clients.
As a condition of our admission to practice law in Rhode Island, we have all taken an oath to “support the constitution and laws of this state and the constitution and laws of the United States.”[fn 7]
As lawyers, we enjoy a unique position in society. Our role extends far beyond the provision of legal advice to our clients. Some of us are employers; others serve on the boards of for-profit companies or non-profit organizations. In keeping with our oath to support the Constitution and the laws of the United States, it is incumbent upon us to know and understand the state of the law, particularly as it evolves.
For many years, but especially in recent years, a wide variety of programs that provide preferences on the basis of race alone have been implemented in a wide variety of settings (not just education) for the laudable purpose of promoting diversity, equity and inclusion. If the Supreme Court’s holding is applied beyond the context of higher education, those programs may no longer pass constitutional muster.
But, as EEOC Chair Burrows explained, that does not mean that diversity, equity and inclusion programs all suffer a similar fate. The Supreme Court’s decision did not, in any way, invalidate diversity, equity and inclusion programs in and of themselves.[fn 8]
Instead, the Supreme Court’s decision challenges us to analyze diversity, equity and inclusion programs to ensure they do not employ preferences based on race alone and are not premised on racial stereotyping, as the Court determined was the case with Harvard and UNC’s admissions programs. And if they do, it is incumbent on us to rethink how those programs can be designed to achieve the otherwise commendable goal of diversity, equity and inclusion.
The majority opinion expressly found that the educational benefits Harvard and UNC advanced in support of their admissions programs were “commendable goals,” although even those commendable goals could not be used to justify preferences on the basis of race alone.[fn 9]
For example, the Court found Harvard’s goals of (1) training future leaders; (2) preparing graduates to adapt to an increasingly pluralistic society; (3) better-educating students through diversity; and (4) producing new knowledge stemming from diverse outlooks, all to be commendable goals.[fn 10]
The Court likewise found UNC’s goals of (1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive leaders; and (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes, all to be commendable goals.[fn 11]
If, as the Supreme Court found, these are all commendable goals, then the Court’s challenge to us is to determine how those commendable goals can be achieved without preferences based on race alone.
At the Bar Association, we remain deeply committed to diversity, equity and inclusion. Through numerous initiatives, we strive to create a sense of community and belonging for all our members and to open pathways for future leaders.
We recognize the importance of generating the interest of our youth in the practice of law, and we do that through programs that reach across communities in our state, including Law Day, Lawyers in the Classroom, and a brand-new collaboration with the Rhode Island Judiciary on Constitution Day, among others.
We also collaborate with Roger Williams University School of Law and support its students with the goal of retaining diverse talent in our state long after their commencement.
And, this year, we instituted our Leadership Academy, designed to achieve many of the goals the Supreme Court found commendable. With the intention of creating a strong pipeline to leadership, application to our program is open to all active members of our Bar. Those admitted to the academy receive the benefit of professional supports—coaching, training and mentorship—that they can bring back to their own workplaces and use to further their own leadership in the Bar. The Academy also includes diversity training so we may continually ensure that diversity, equity, and inclusion are woven into the fabric of our Bar. In sum, the Academy brings together participants from a wide variety of backgrounds, including life experiences, levels of professional experience, and practice areas, to create an inclusive forum for professional trainings and coaching, relationship building, and the exchange of ideas.
We are making diversity training available not only to the participants in our leadership academy but also to our Executive Committee and committee chairpersons.
Our work to promote diversity, equity, and inclusion does not end here. The Supreme Court’s decision challenges us to think harder and do better. It makes no promise that it will be easy. But together, we can do that hard work. The future of our profession depends on it.
Endnotes
1 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 216 L. Ed. 2d 857, 896 (2023).
2 Grutter v. Bollinger, 539 U. S. 306, 326 (2003).
3 Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978).
4 Students for Fair Admissions, Inc., 216 L. Ed. 2d at 896.
5 Id.
6 Statement from EEOC Chair Charlotte A. Burrows on Supreme Court Ruling on College Affirmative Action Programs (June 29, 2023), available at https://www.eeoc.gov/newsroom/statement-eeoc-chair-charlotte-burrows-supreme-court-ruling-college-affirmative-action.
7 R.I. Sup. Ct. Art. II, R. 8.
8 See also Students for Fair Admissions, Inc., 216 L. Ed. 2d at 982 (Sotomayor, J., dissenting) (“To be clear, today’s decision leaves intact holistic college admissions and recruitment efforts that seek to enroll diverse classes without using racial classifications. Universities should continue to use those tools as best they can to recruit and admit students from different backgrounds based on all the other factors the Court’s opinion does not, and cannot, touch.”).
9 Students for Fair Admissions, Inc., 216 L. Ed. 2d at 886.
10 Id.
11 Id.