DEI Protection Task Force

Race-conscious admissions programs are not all that hang in the balance as the US Supreme Court considers Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (SFFA). If the Court rules against the universities, the impact of that decision will reach far beyond higher education. Any organization with policies designed to recruit and advance diverse individuals could face legal risk from private lawsuits by organizations eager to push the Court’s ruling into other areas, state attorney general investigations, and more. The threat to companies, institutions of higher education, and organizations of all types that use DEI criteria in decision-making cannot be overstated. With the Court’s decision expected by Summer 2023, now is the time to prepare.

The most immediate ramifications of an adverse decision in SFFA will impact educational institutions. If Grutter v. Bollinger is overturned, longstanding policies, practices, and programs will need to be reshaped immediately. For some institutions, the decision could come in the middle of the 2023 admissions cycle, when waitlist, transfer, and deferral decisions remain underway. It will be critical to have contingency plans in place and to begin working now on the blueprint for next year’s admissions cycle. The stakes are high, and our deep experience representing leading public and private educational institutions gives us the knowledge and insight to untangle these issues and develop creative solutions and affirmative strategies with the urgency needed.

Businesses and organizations beyond higher education should start preparing in earnest for a post-SFFA world, too. Most businesses today have embraced DEI as a core value, and programs supporting the recruitment, hiring, professional development, and retention of diverse employees are prolific. With efforts already underway to push the Court’s anticipated ruling into other industries, these programs are now at risk. Organizations should understand the aspects of their programs that are most vulnerable to litigation or enforcement actions and take steps now to insulate those programs from challenge.

Our clients understand that the best decisions are made through a diverse lens. We are here to help: from the redesigning of programs and policies, to shaping strategies that will reduce risk, to addressing complex, high stakes issues—and everything in between. We support our clients as they strive to align their decision-making process with their diverse client base.

With Jenner & Block’s proud tradition of addressing high-impact social and equity issues in courts across the United States, and a passion for protecting diversity, equity, and inclusion in our society, our DEI Protection Task Force is at the forefront of assisting clients of all types as they navigate the potential impacts of SFFA.