View source for Blog:Docmoates/diversity-equity-and-inclusion-programs-under-legal-scrutiny

Diversity, equity, and inclusion programs in universities, corporations, and government agencies have faced significant legal challenges, executive orders, and policy scrutiny in recent years. The legal and policy landscape has shifted substantially, and understanding what has changed, what the legal issues are, and how institutions are responding is important for organizations navigating this environment. The Supreme Court's 2023 decisions in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina substantially changed the legal landscape for race-conscious admissions in higher education. The Court held that the admissions programs at both institutions violated the Equal Protection Clause of the Fourteenth Amendment. The decisions did not prohibit universities from considering how race has affected an applicant's life experiences, but they prohibited treating race itself as a factor in admissions decisions. Institutions have been redesigning their admissions processes in response. Executive orders affecting DEI programs in the federal government and federal contractors have been issued by both the Biden and Trump administrations, reflecting the highly politicized nature of DEI policy. The Trump administration's executive orders have directed federal agencies to eliminate DEI offices and programs, end training programs addressing concepts including implicit bias and structural racism, and investigate contractors and grantees for DEI-related activities. Implementation of these orders has been subject to legal challenge, and the scope of their application to federal contractors and grantees has been contested. In the private sector, major corporations including some that had made high-profile DEI commitments following the social justice attention of 2020 have scaled back their stated DEI commitments and programs, citing legal risk, shareholder pressure, and changing political environment. Some corporations have dissolved their DEI offices or reduced their staffing significantly. Others have maintained commitments while adjusting their language and program design. Legal challenges to corporate DEI programs have been brought under Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Courts have addressed whether diversity-conscious hiring programs constitute illegal race or sex preferences prohibited by Title VII. The legal boundary between permissible diversity programs that seek broad outreach and representation and prohibited preferential treatment based on protected characteristics has been a focus of litigation. State-level legislation has added to the legal complexity. Several states have enacted legislation restricting DEI programs in public universities and other public institutions, requiring changes to institutional programming, employment decisions, and the language used to describe equity-related work. Litigation challenging these state laws on First Amendment and other grounds is ongoing. For institutions navigating this environment, legal counsel has been advising a range of approaches including reviewing existing programs for legal compliance, documenting the non-discriminatory rationale for diversity-related programs, adjusting program language and design to focus on specific competencies and qualifications rather than protected characteristics, and maintaining commitments to equitable outcomes while adjusting the programmatic means by which those outcomes are pursued. The policy debate about DEI reflects deep disagreements about the causes of inequality, the appropriate role of institutions in addressing it, and the relationship between individual rights and group-based remedies. These are genuine normative debates that the legal system is addressing in specific cases while the broader societal debate continues. The legal landscape is evolving, and institutions are making decisions in a context of significant uncertainty about where the legal boundaries ultimately will be drawn.

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''Originally published September 18, 2023 on [https://docmoates.com/blog/diversity-equity-and-inclusion-programs-under-legal-scrutiny/ docmoates.com].''