Unpacking Legal Challenges in DEI Post-Supreme Court Ruling: Lessons from a Timely Webinar

Author’s Note - I originally wrote this article in September 2024, with the plan of posting it on November 6, 2024, the day after the presidential election. The result of the election made me pause to see how true this information would be after January 20, 2025. As of the writing of this update, it has been 68 days since President Trump took office for his second term. During this time, he has signed executive orders to end DEI initiatives on a federal level and we have seen many universities and corporations (I’m looking at you, Target!) also step back from DEI initiatives. We have heard of some nonprofit arts organizations cancel programming from Black and Trans artists, and we have seen organizations like Baltimore Center Stage double down and say they are not changing their programming and commitment to DEI. We saw the NEA decide not to fund art that promotes DEI, but stay committed to funding work by BIPOC artists (make that make sense, please). I’ll be honest: as a woman of color, a Latina, and a single mother to an Afro-Latine child with special needs, I am staying cautiously optimistic about the future of DEI in the nonprofit arts workplace. With that being said, here is my article titled Unpacking Legal Challenges in DEI Post Supreme Court Ruling: Lessons from a Timely Webinar.

If you’re anything like me, the Supreme Court ruling on affirmative action that took place on June 29, 2023, shook you to your core and left you with more questions than answers. What would it mean for workplace DEI programs? Would there be a rollback of the hard-fought progress we made toward increased equity and representation within organizations? Since the ruling, we have already seen several companies abandon DEI initiatives, and others in the field continue to grapple with how to promote equity and inclusion in the workplace in light of the new ruling. 

These questions were front and center at a webinar that I attended titled “Legal Challenges Around DEI,” hosted by Arts Administrators of Color. The session, led by legal experts Sunu Chandy, Senior Advisor, and Brooke Menschel, Senior Counsel of Democracy Forward, broke down some of the major concerns surrounding DEI initiatives and provided much-needed clarity on what we can expect moving forward. 

Here’s what you need to know:

The Supreme Court Decision: What It Really Means

First, Chandy and Menschel broke down how the Supreme Court’s decision actually changes the rules around affirmative action. While this ruling shook the foundation of race-conscious admissions, it’s important to note that the impact is largely confined to higher education institutions. This decision doesn’t directly override affirmative action law as it applies to employment or workplace DEI programs. [Update: We are seeing the ending of DEI initiatives and programs on a federal level due to President Trump’s executive order]. As Chandy highlighted, many people incorrectly assume that the ruling bans all race-based initiatives across the board, but it does not. 

Mischaracterizations: The Real Threat to DEI

A key point raised by both panelists was how many lawsuits hinge on mischaracterizations of the Supreme Court’s decision. The ruling specifically applies to admissions processes at higher education institutions and does not touch employment laws that fall under protections like the 1981 Civil Rights Act. This act, designed to protect Black Americans from employment discrimination, remains a crucial legal safeguard in today’s DEI efforts.

In other words, while the ruling may have stoked fears, it doesn’t mean DEI programs are doomed. Courts have been dismissing many of these lawsuits because, as the webinar pointed out, they lack legal merit and are driven more by ideology rather than legitimate legal claims. [Update: Federal courts are still blocking President Trump’s anti-DEI executive order.]The challenges are often brought forward by anti-DEI groups that fail to demonstrate any actual harm. 

However, the broader concern stems from the ripple effect. Anti-equity groups are already using this decision as ammunition to challenge DEI programs in workplaces, public and private contracts, and sectors beyond education. These challenges are often based on a misinterpretation of the Court’s decision. For example, some organizations are receiving threatening letters or lawsuits attempting to extend the Supreme Court’s ruling to areas like hiring, board representation, and workplace policies. 

Affirming DEI’s Legality: Some Hope Amidst the Backlash

So Tiff, what's the good news? Well, courts have upheld that DEI programs and anti-discrimination training are still very much legal. (If you are interested in having EMC provide DEI training for your organization, in particular as it pertains to searches, contact us here). Programs that promote diversity in hiring or focus on creating inclusive workplaces are not automatically unlawful just because they mention race. In fact, the Equal Employment Opportunity Commission (EEOC) has supported these initiatives, emphasizing that they play a critical role in complying with civil rights laws.

However, organizations need to be cautious. Programs that exclusively benefit one race to the exclusion of others must be carefully analyzed to ensure that they don’t violate anti-discrimination laws. It’s all about balancing the goals of equity with the legal frameworks in place. For example, we at EMC center anti-racism in our work, and have started to use a version of this language in the job descriptions for our clients who identify as culturally specific institutions: “A qualified candidate will have a depth of understanding of the lived experiences of Black, Indigenous, and People of Color (BIPOC); a knowledge of or willingness to learn about the unique histories and experiences of BIPOC communities; recognition (if not full knowledge) of the particular challenges of a culturally-specific arts organization; and the ability and desire to clearly communicate on issues related to social justice and BIPOC communities.” Both Chandy and Menschel approved of this language. 

The Path Forward: DEI Isn’t Dead, But It Needs to Adapt

So, where do we go from here? The panelists stressed that DEI programs can -and should- continue, but they might require some changes. One solution discussed was the use of race-neutral criteria that still promote equity by analyzing the impact on marginalized communities. 

The session also highlighted that although some DEI programs are being challenged, others are being settled in ways that maintain their original goals. That means that DEI isn't just about “checking a box” but taking intentional steps to create fairer workplaces, even in the face of legal scrutiny.

Reflections: Connecting to the Broader Impact of the Supreme Court Ruling

As I reflect on the session, as a DEI facilitator myself, it’s impossible not to consider the broader implications of the Supreme Court decision. While the ruling itself may not make DEI programs in workplaces illegal, its broader cultural impact is undeniable. People like Edward Blum, the architect behind the case, have already signaled plans to challenge DEI in corporate settings. As we’ve seen in the past with voting rights and affirmative action, legal battles around race are likely to continue for decades. [Update: this is not at all based on fact, but I feel like I see a new article about dismantling and reinstating DEI initiatives and programming on a federal, corporate, and university level every single day.]

However, the webinar made one thing clear: the fight for anti-racism and equity is far from over. We may have to adapt, evolve, and be even more strategic in how we pursue diversity, but the work must continue. For those of us in industries that value inclusive spaces- whether it’s theater, education, nonprofits, or corporate America- the message is simple: stay informed, stay prepared, and above all, stay committed. 

¡Pa’lante!