By Allyson Chan

Abstract

This article examines how the case law behind recent efforts to ban DEI programs misuse and do not recognize the intent behind the Fourteenth Amendment, its Equal Protection Clause, and the Civil Rights Act of 1966 and contradicts the past standard of applying strict scrutiny. The article argues that because of these failures, the legal justification of Students For Fair Admissions, inc. v. President and Fellows of Harvard College is unsound.

In October of 2022, the Supreme Court ruled in Students For Fair Admissions, inc. v. President and Fellows of Harvard College that race-based admissions had not met the criteria to properly apply strict scrutiny, thus inappropriately violating the Fourteenth Amendment.1 This ruling resulted in the pullback of diversity, equity, and inclusion (DEI) programs in companies and academic institutions out of fear of discrimination lawsuits.2 DEI initiatives like affirmative action work to amend the consequences of past discriminatory practices by providing opportunities tailored for disadvantaged communities. However, the legal reasoning behind such pushbacks utilize laws that were created to enforce a more equitable society, highlighting how recent efforts to stop DEI programs are unjustifiable.

The court’s decision in Students For Fair Admissions, inc. v. President and Fellows of Harvard College was justified by affirmative action’s inherent violation of the Fourteenth Amendment which bars discriminatory practices as all citizens have a right to equal protection under the law.34 When examining practices or actions that fundamentally violate a constitutional right or involve suspect classification such as race or religion, the court has to apply a level of strict scrutiny. Arguments concerning strict scrutiny shift to prove the intent and effect of said discriminatory policy works to further a compelling government interest while being “narrowly tailored” enough to prevent it from being taken advantage of.5 Historically, discrimination has been viewed as a compelling government interest as seen in past court rulings regarding affirmative action such as Regents of Univ. of California v. Bakke in 1978.6 It was noted that although race was a factor in these admissions, it was not the sole factor and an applicant’s other achievements would be considered and thus was narrowly tailored to minimize the impact for other races. DEI programs often coexist beside the field of work, meaning the majority is still able to find opportunities to thrive despite not being in these programs, while the minority groups are given a platform as well. This tailoring highlights how DEI programs should be recognized as compliant with the standards of strict scrutiny that were originally established. Although this case was examined with a newer set of prongs for strict scrutiny that needed to be fulfilled and the Court desired to have a definitive end point of when racial equality would be reached, establishing when racial injustice would be solved is an unreasonable ask for such a long-lasting and contentious issue and therefore, affirmative action should be measured with the original application of strict scrutiny (compelling interest and narrowly tailored).

Moreover, the colorblind interpretation of the amendment used in Students For Fair Admissions, inc. v. President and Fellows of Harvard College misconstrues the Fourteenth Amendment and other legislation like it.7 The Civil Rights Act of 1866, the Fourteenth Amendment, and its Equal Protection Clause were in response to the post-Civil War environment in which African Americans were not given the rights that White citizens were granted. Striking down affirmative action on the basis of violation of the Equal Protection Clause inherently goes against what could be perceived as the intent of the clause—providing greater protections for marginalized communities as a means of promoting equality. Through DEI efforts now, closing the equality gap may lead to a future in which discriminatory opportunity for communities of color is not the compelling government interest it once was and these programs are not seen as necessary. However, America has not yet reached a point in which communities of all backgrounds receive equal treatment.8 Until that occurs, DEI programs are necessary and past legal precedent that establishes them as such should be respected.

Instead, the push to remove DEI programs does not properly account for the intent of such initiatives. An example of a DEI program being unjustly shut down can be seen in Atlanta, Georgia, in which a fund that was created to give Black women greater opportunity in the realm of entrepreneurship has been found as violating the Civil Rights Act of 1866 which guarantees equal protection under the law.9 Taken at face value, this fund does discriminate as it only provides for women of a specific race; however, it is important to note the context of the fund as Black women are and have been historically underrepresented in business and thus have fewer resources. The lack of resources may be rooted in multiple causes, such as women lacking the right to even have an individual bank account until the Equal Credit Opportunity Act of 1974, the generational wealth gap between races, and prior workplace employment discrimination.1011 Therefore, this is an example of discrimination that is meant to amend past inherently unequal practices being punished, demonstrating how retaliation against DEI further perpetuates racial inequality.

Therefore, based on the intention of the Equal Protection Clause, DEI programs and affirmative action should not be viewed as a violation of individuals’ fundamental rights. And even if it were, it should pass the test of strict scrutiny since it is narrowly tailored and covers what should be considered a compelling government interest.