Before the U.S. Supreme Court’s decision in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College, the Supreme Court had recognized repeatedly that diversity in higher education is a compelling state interest that can justify consideration of race in admissions, as long as the use of race is narrowly tailored to that interest. That historical precedent set the framework for many years for how courts analyzed race-conscious decision-making in education, and influenced how companies thought about diversity, equity, and inclusion (DEI) efforts as well.

But all of that changed when the court struck down affirmative action in the higher education undergraduate admissions process under the equal protection clause of the Fourteenth Amendment. The court declared the practice unconstitutional, and by extension, declared the process unlawful under Title VI of the Civil Rights of Act 1964 as well. The court’s decision did not directly change the law outside of the education space. However, almost instantly, litigation emerged, challenging employment-related DEI practices, charitable grantmaking and mission-driven investments, supplier diversity programs and corporate board governance programs. This article discusses the latest litigation trends in these areas.

Challenges to Employers