Diversity, Equity, and Inclusion: Developments and Paths Forward
Post-SFFA
Article by Featured Author
Posted March 2024A review of the Google search results for “Diversity, Equity, and Inclusion” is a quick indicator of how DEI has become a topic of conversation for all forums. Educators, legislators, corporations, and legal practitioners have all chimed in to discuss DEI from its framework and underlying principles to formalized DEI programs and initiatives. DEI has recently garnered intense scrutiny and sparked polarizing conversations. Setting aside our personal views, as legal practitioners we should be cognizant of how DEI can affect our practice. The February CABA Membership Meeting provided a brief overview of different aspects of DEI for consideration by members as legal practitioners, as advisors to clients, and as members of large organizations. The presentation was followed by a poignant discussion from panelists Dean John Anderson of Mississippi School of Law, Dean Fred Slabach from the University of Mississippi School of Law, and Don Smith, Chief Talent & Inclusion Officer of Crowell & Moring, LLP.
On June 29, 2023, the United States Supreme Court issued its landmark decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina et al. (“SFFA”) holding that race-based affirmative action in college admissions was unconstitutional.1 The Supreme Court found that Harvard and the University of North Carolina’s affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment. The decision overruled 45 years of precedent established in prior Supreme Court decisions, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas. However, the ruling permitted colleges to consider how race has affected a student’s life and their ability to contribute to the educational institution. While educational institutions immediately began examining the impacts of the decision, not long after the holding, entities and organizations not directly affected by SFFA’s ruling began asking what legal actions were on the horizon with broader implications.
As legal practitioners, we are responsible for keeping informed of proposed and recently enacted legislation. The Chronicle of Higher Education provides a DEI Legislation Tracker that summarizes legislation focused on DEI and tracks the status of the legislation.2 The DEI Legislation Tracker characterizes legislation with four types of identified proscriptions: 1) legislation that would prohibit colleges from having diversity, equity, and inclusion offices or staff; 2) legislation that would ban mandatory diversity training; 3) legislation that would forbid institutions to use diversity statements in hiring and promotion; or 4) legislation that would bar colleges from considering race, sex, ethnicity, or national origin in admissions or employment. While certain states have legislation focused on one such proscription, others have proposed legislation that addresses all four proscriptions. As of March 22, 2024, 81 bills have been introduced, 13 have received legislative approval, 11 have become law, and 33 have been tabled, failed to pass, or vetoed. Mississippi Representative Becky Currie introduced House Bill 127, described in the bill summary as “[a]n Act To Prohibit State Supported Postsecondary Educational Institutions Under The Purview Of The Board Of Trustees Of State Institutions Of Higher Learning Or The Mississippi Community College Board From Soliciting Pledges Or Expending Any Funds, Regardless Of The Sources From Which Such Funds Are Derived, For The Purpose Of Promoting Or Implementing Diversity, Equity And Inclusion Initiatives For Students And Employees Of The Postsecondary Educational Institution; And For Related Purposes.”3 House Bill 127 died in committee, but it may not be the last anti-DEI legislation Mississippi considers. The DEI Legislation Tracker is just one source that shows how multiple states have already considered, and in 11 cases, passed, DEI bills of varying scope. DEI legislation is not likely to slow down in years to come, so it is imperative that as practitioners we stay informed of state-level legislation.
As lawyers we have the privilege of serving as advisors to clients. It is our responsibility to guide them through the oftentimes grey legal landscape. DEI is one such landscape. While we cannot definitively predict when or if our clients will be the subject of a suit challenging their DEI initiatives and programs (or lack thereof), we should keep our pulse on how entities are responding to challenges. As with any hot-button issue, there are differing viewpoints. Tesla Chief Executive Officer Elon Musk and investor Bill Ackman have been vocal critics of DEI strategies, while Dallas billionaire Mark Cuban has spoken in support of DEI and the positive effects DEI has had on his business.4 Several firms have recognized the business development opportunities associated with counseling clients on DEI strategies and best practices. This recognition has even resulted in the expansion or creation of DEI practice groups.5
The practice of law at the end of the day is a business. Whether you are a solo practitioner or a member of a firm, a legal organization may be faced with similar questions as its clients about how to navigate challenges to DEI. On August 29, 2023, five Attorneys General from the states of Montana, Arkansas, Kansas, Iowa, and Kentucky were signatories on a letter addressed to Managing Partners, Chairs, and CEOs of American Lawyer (Am Law) 100 Firms. The letter advised the addressees to “immediately terminate any unlawful race-based quota or preferences” that the firms had adopted and cautioned that the addressees would be held accountable for treating individuals differently because of the color of their skin.6 Legal organizations are just as at risk as other businesses of being caught in the crosshairs of challenges to DEI.
Lawyers are in a unique position with respect to DEI. As practitioners, laws – including DEI legislation – serve as the basis for our practice. As advisors, clients will potentially look to us for sound counsel on how to operate amidst the seemingly unstable DEI environment. As members of organizations, lawyers themselves are faced with choices about how to approach DEI. For some, DEI is much more than an evolving legal matter – it is a framework of principles rooted in a deeper, often personal, mission. Whether a lawyer is an advocate or opponent of DEI, it is indisputable that DEI is a relevant and evolving topic.
1. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
2. The Chronicle of Higher Education, DEI Legislation Tracker, Feb. 14, 2024. Available at http://www.chronicle.com (Last accessed Mar. 24. 2024).
3. HB 127 is available at https://billstatus.ls.state.ms.us (Last accessed Feb. 19. 2024).
4. Mark Cuban [@mcuban]. “Let me help you out and give you my thoughts on DEI 1. Diversity Good businesses look where others don’t, to find the employees that will put your business in the best possible position to succeed. You may not agree, but I take it as a given that there are people of various races, ethnicities, orientation, etc that are regularly excluded from hiring consideration. By extending our hiring search to include them, we can find people that are more qualified. The loss of DEI-Phobic companies is my gain. 1a. We live in a country with very diverse demographics. In this era where trust of businesses can be hard to come by, people tend to connect more easily to people who are like them. Having a workforce that is diverse and representative of your stakeholders is good for business.” Twitter, 3 Jan. 2023, 3:33 p.m., https://x.com/mcuban
5. For example, Seyfarth Shaw and Ogletree Deakins have DEI practice groups on their website. See, respectively, https://www.seyfarth.com and https://ogletree.com (Last accessed Mar. 24. 2024).
6. https://www.ag.ky.gov (Last accessed Mar. 24. 2024).
About the Author
Christina Marie Nunez is an associate at the Jackson office of Balch & Bingham in the Business and Health Law practice groups. She is co-chair of the CABA Diversity Committee. Views expressed in this article are solely those of the author and do not represent the views of Balch & Bingham, CABA, its officers, directors, or staff.