*[co-author: McKale Walker]
From Congress’ recently proposed “Dismantle DEI Act of 2024” to the Court of Appeals for the Tenth Circuit’s decision permitting mandatory diversity training by employers, diversity, equity, and inclusion (“DEI”) programs remain a contentious issue in U.S. politics. In June 2024, attorneys general from 40 states joined one of two dueling letters, reflecting the inconsistent sentiments on this topic across state lines.
On June 3, 2024, state AGs from 21 states that are controlled largely by Republicans co-signed a letter pressing the American Bar Association (“ABA”) to revise Standard 206 of its Standards and Rules of Procedure for Approval of Law Schools.[1] Standard 206 encourages diversity in two components of the law school experience: student opportunities and faculty/staff recruitment. Regarding student opportunities, Standard 206 requires accredited law schools to “demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups.” Regarding faculty/staff recruitment, Standard 206 requires law schools to “demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race, and ethnicity.”
The letter, written by Tennessee Attorney General Jonathan Skrmetti, urges the ABA to eliminate any consideration of race from its accreditation process and posits that Standard 206 encourages law schools to use race-based criteria to make decisions in admissions and hiring, a practice that Skrmetti writes “fails to account for” the Supreme Court ruling in Students for Fair Admissions and “violates the Constitution and federal law,” namely, Title VII of the Civil Rights Act of 1964. In Students for Fair Admissions, the Supreme Court held that higher educations may not use race in isolation to make admissions decisions.
On June 20, 2024, state AGs from states that are largely controlled by Democrats responded with their own letter, this one addressed to the American Bar Association, Fortune 100 companies, and other organizations.[2] Authored by Illinois Attorney General Kwame Raoul, this letter calls on these entities to remain committed to their respective DEI programs despite Students for Fair Admissions.
This second letter posits that Students for Fair Admissions applies only to the “limited context of race-conscious higher education admissions.” DEI initiatives “that do not ultimately determine who is admitted [to an institution] …[are] not implicated by the holding.” Such initiatives include recruitment efforts to encourage a diverse applicant pool, on-campus affinity organizations, and ABA Standard 206. Because Standard 206 does not require law schools to make admissions decisions based on race or dictate how a law school must demonstrate its commitment to diversity and inclusion, Raoul’s coalition asserts that the Standard remains lawful.
The second letter continues by affirming that corporate DEI programs are lawful despite Students for Fair Admissions. Companies are “generally prohibited from considering race in employment decisions.” At the same time, they continue to have “wide latitude to ensure that their applicant pools are diverse and that their workplaces are equitable and inclusive.” Furthermore, the letter maintains that DEI efforts are “good for business,” with more diverse companies showing a financial advantage over others. The letter concludes by encouraging businesses and organizations to continue to “promote DEI initiatives and to push back against efforts to misconstrue the law in an attempt to chill or reverse progress.”[3]
While federal law will continue to apply uniformly, it appears that geography may become increasingly determinative in assessments regarding the lawfulness of DEI programs as the applicable state laws continues to develop.
For employers concerned about their investment and participation in DEI efforts, properly implemented DEI programs still remain permissible under Title VII. Statistics continue to reveal that such programs frequently increase employee morale, help with recruitment and retention efforts, and drive better business outcomes.
*Written with the assistance of McKale Walker, a summer associate in Husch Blackwell’s Denver office.
[1] Co-signers on the June 3, 2024, letter include attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, Utah and Virginia.
[2] Co-signers on the June 20, 2024, letter include attorneys general from California, Colorado, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington and Washington, D.C.
[3] Interestingly, the ABA is currently revising Standard 206, and those proposed revisions are expected very soon.
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