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The Supreme Court ruling on affirmative action — one year later

Mandile Mpofu
The Supreme Court ruling on affirmative action — one year later
U.S. Supreme Court building. PHOTO: Anna Sullivan, Unsplash

Last year, the U.S. Supreme Court struck down affirmative action in a landmark ruling, effectively ending race-based college admissions. But what was meant to be a law targeting higher education institutions may have impacted other industries.

Some experts say in the year since June 2023, the decision has had ripple effects that go beyond higher education. The full extent of the ruling’s implications has yet to be seen.

When the court handed down its decision, Michael Kippins, a litigation fellow for Lawyers for Civil Rights, along with others in his organization, worried about the impact the decision would have on the “racial climate on campuses” and admissions rates for people of color. Equally concerning was the potential effect on areas outside academia.

While the Supreme Court’s decision was aimed at higher education institutions, Kippins said, some parties have pushed it past its stated boundaries, with some opposing targeted opportunities for people of color in corporate settings.

“We’ve seen some challenges by conservative groups to push the agenda beyond what we have seen in the Supreme Court’s decision … and we have seen challenges in the areas of employment, in the area of procurement for government contracts, and in the financing and lending spaces,” he said.

Carla Reeves, a director at law firm Goulston & Storrs and an employment litigator, said in the last year, she has witnessed people link the Supreme Court’s decision to DEI initiatives in the private sector.

“We immediately saw people connecting those dots and trying to leverage this higher-ed decision in a way that has a very real, immediate impact on the workforce,” she said. “And I think that impact, for some, was a chilling effect.”

Reeves pointed to a case brought against Fearless Fund, a venture capital firm investing in businesses owned by women of color, in which she said the affirmative action case was referenced. In June, an appeals court ruled that a grant program for Black women offered by the firm was discriminatory. The plaintiff in the case, American Alliance for Equal Rights, is led by conservative activist Edward Blum, who spearheaded the case against affirmative action.

“They are looking for ways to sort of chip away at efforts that have been made over time,” Reeves said, adding that workplaces across different industries are revisiting their internal DEI procedures and discussing how to proceed.

There is a “legally compliant way” to uphold DEI practices, Reeves said, and the decision shouldn’t prevent employers from continuing the efforts they’ve invested time and money in. She said she sees an opportunity for employers to reflect on their priorities and use the available tools to uphold their values.

“This decision [was] a reminder that we have to remain vigilant and also just be very creative and thoughtful … I don’t think that withdrawing support for these efforts … is the answer here,” she said.

Shayla Mombeleur, secretary of the Massachusetts Bar Association and a trial attorney at Todd & Weld, shared a similar sentiment.

“We’re still at a moment where we’re still watching and learning,” she said of the influence the ruling might have down the line, but “the most important thing, in my view, is for people to still stand strong in their DEI practices, with, of course, being thoughtful of the legal landscape.”

Mombeleur, who has co-chaired her firm’s DEI committee, said she saw the Supreme Court’s decision as an undoing of the work advocates have done to level the playing field in academia and the job sector, much of that work centering on removing the barriers faced by people of color.

She lauded the schools that, in the wake of the Supreme Court’s decision, published statements reaffirming their stances on DEI, balancing the changes required by the law with their internal values.

Like Kippins and Reeves, Mombeleur said she worried the decision would have widespread effects, but whether those initial fears will fully materialize is unclear.

After the ruling, school officials grappled with how to “articulate the value of diversity and inclusion” on campus while complying with the law, said Harvey Young, dean of the College of Fine Arts at Boston University.

“The conversation [was] really centered on, ‘How do we express our commitments to inclusion, to access, to having people from different walks of life and experiences be in rooms together, in conversation and dialogue?’” he said.

In his leadership role, he worked to emphasize that students in the program were accepted because of their academic merits and to reinforce his college’s commitment to “diversity of ideas and experiences.” 

There exists a narrative that people of color who benefited from affirmative action were admitted into positions for which they were unqualified, he said, when in fact accepted students have historically been “exceptional.” His fear, he added, is that without the legal stamp of affirmative action, not all institutions will continue to make an effort to foster a diverse student body.

“You can remove a box pretty easily from an application,” Young said, referring to the change required by the law. “However, the real proof of whether or not you as an institution are committed isn’t about who you admit … it’s ‘What messaging are you putting out to the world?’”

Here in Boston, Northeastern University and Boston College were also among the group of schools that responded to the Supreme Court’s ruling with statements voicing their commitment to diversity.

Looking ahead, Kippins, the litigation fellow with Lawyers for Civil Rights, said a similar pattern will persist.

“What we’ll see is that schools who are very devoted and inspired and thoughtful about how to recruit and retain applicants and students of color will continue to do so. They will make the effort,” he said, adding that higher education plays a key role in creating opportunities for historically marginalized groups.

A recent report by Common App, a higher education nonprofit, shows an increase in the number of students of color who have applied to four-year colleges since June 2023. The report does not state enrollment numbers.

Given that the Supreme Court’s ruling is only a year old, Kippins said, it continues to generate varying interpretations that may have effects beyond colleges and universities.

“There are boundaries that will need to be set and reset,” he said, “and we will likely see challenges outside of the higher education context going forward the same way that we’ve seen them already.”