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The most concerning interpretation of the recent SCOTUS Affirmative Action decision - that it eliminates any consideration of race, gender, and similar student demographics in considering the selection of students for college - is driving speculation by employers about their diversity hiring practices because of its similarity to admissions practices. University administrators are already claiming they will see declines of underserved and underrepresented groups of students in future classes. 

Until actual court cases that use the SCOTUS decision as an argument are on the books, which can take months if not years, employers may be in danger of misreading the Supreme Court’s decision, cutting back on their diversity hiring initiatives and causing irreparable damage to their brand as well as their ability to attract and retain the best and brightest talent.

In the meantime, employers committed to a progressive approach to DE&I should be learning from the ruling, tightening up and defending their policies and practices. This article is one person’s opinion about three defensible areas in need of repair based on an in-depth reading of the SCOTUS ruling as well as the counter arguments of the judges in the minority. 

The court decision was based on its interpretation of the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.

The court’s published language does not discourage the use of race, gender, different ability, geography, or any other demographic characteristic in the decision. Instead, the court clearly states that the characteristics of the students (such as race) that are weighed in the selection cannot result in a 'zero sum'. This is my wording and zero sum is used in the sense that any initiative to increase diversity (+) in one group cannot limit (-) the selection of another. 

Central to the case brought before the Supreme Court and repeated multiple times in the written decision is the Equal Protection Clause of the Fourteenth Amendment which, simply stated, stipulates that, in this case, a school system must provide equal access to schooling. Education itself is not a right. The onus to demonstrate what ‘equal’ means is the responsibility of the institution, not the complainant. 

The SCOTUS ruling very specifically focused on the admissions practices of just two institutions: Harvard and UNC. Much of the court’s language describes in excruciating detail how these two Universities select their entering classes of students (which is what, at first glance, peaked my curiosity.) Two points emerged:

Class demographics & selection

As the court deconstructed Harvard’s and UNC’s admission practices (which you can read for yourself), it was clear that the justices who ended up voting for the ruling were especially sensitive about each university's successive adjustments of class demographics. At Harvard, for example, six dimensions (“academic, extracurricular, athletic, school support, personal and, overall”) were initially indexed for each applicant. Three additional selection reviews were successively empaneled to examine and adjust the geographic distribution and diversity of the entering class without regard to a context of what a diverse class could look like. There appeared to be no defense of the results of the final selection about probability of success, or the relevance of the distributions of race, gender, etc. (i.e. Does the diversity of this class represent or reflect the world it is drawn from, the pool that applied for admissions, the probability for success?…or some similar defensible notion of a fair selection of the several thousand first year college students from among the 10s of thousands of applicants.). 

In the end neither Harvard nor UNC convinced the majority of voting jurors that their actions produced a proportionately diverse student body and that pains were taken to avoid a potentially disproportionate result of adjusting the racial distribution in each of their multiple reviews to the extent that they impacted other groups of students negatively.

Weighted decisions

Secondly, it should not be lost that the language of the published decision pointedly addresses, in several places, previous SCOTUS rulings that accept diversity as a legitimate condition for “weighting” admissions decisions - on the basis that it is a valuable dimension of the college learning environment. 

In Summary, the primary focus of concern in rendering a decision was the Equal Protection Clause of the Fourteenth Amendment that demands no harm be done to any group at the expense of another. The majority voted to prohibit (at Harvard and UNC) from applying a disproportionately positive weighting on an under-represented or underserved group if another group is negatively affected.

What we should learn from the SCOTUS decision in our hiring practices: 

The Similarities

• Both universities and employers must comply with the Equal Protection Clause outlined in the 14th amendment regardless of how open to interpretation we think it might be. In recent years the number of EEOC suits brought against employers, for example, has skyrocketed to 10s of thousands of complaints annually. 61% of employees surveyed in 2023 state they have witnessed workplace discrimination. (Source: Glassdoor). The challenge of ensuring fairness in the workplace and in hiring has not suddenly disappeared. The SCOTUS decision should not be interpreted as permission to ignore equal treatment, equal opportunity, and equal access whether in education or work. Instead, we need to double our efforts to ensure that our diversity hiring does not impose limitations for other groups.
• Students seeking admissions and applicants seeking work; each clearly and similarly require an ‘expression of interest’ according to the schools’ or the employers’ rules. The challenge is in communicating and engaging prospects to ensure that the ‘pool’ is large enough to reflect a reasonable representation of individuals who are diverse. They can then determine and assess the pool that applied for admission or for work and should know what constitutes a ‘qualified’ applicant or candidate.
• Employment and Education have had longstanding court support that diversity leads to improvement in learning and work outcomes for the individual, the organization/institution, and society in general despite differences in how that is to be achieved.

Diversity Hiring Practices

The following are two areas where the SCOTUS decision suggests a need for improvement or tightening in order to defend diversity hiring practices:

Defend Job Context

The job of a student is to learn. The admission of a new class of students replaces the old one in total and is not connected by the diversity of the previous class of students.  The students who have applied and who are seen as having a relatively equal chance to succeed in graduating (qualified) can be assessed by weighting diversity. The context of this weighting, however, must be to come as close to reflecting a group’s existing demographics for the geographic regions the school serves.  This means assessing the larger, qualified pool of applicants that have expressed an interest and adjusting those selected to a ‘proportionate’ distribution. There may be defenses for disproportionately selecting members of a specific group and I can think of several but that is a discussion every college and university should engage in by carefully considering whether another group would be negatively affected. 

Employers select hires to get work done. Learning is a typical benefit but not one that is guaranteed. Affirmative Action means that an employer reaches out to ensure that underrepresented groups have equal access to a given opportunity. The majority of the positions filled are for a specific job or jobs. That said, there are plenty of exceptions: Internship classes, high volume hiring for a new product line, seasonal hiring, staffing up new facilities, etc. etc. These instances will have similar practices and challenges to the university admissions and the practices noted above should support ‘plus’ weighting of qualified candidates of an underrepresented group to reflect its market representation. Unlike the challenge of student admissions, each job has a more defined set of requirements that in theory are linked directly to the performance of the employer (when professionally determined). When these requirements are consistently applied they can be used to determine whether a candidate is qualified. In some cases, additional skills, knowledge or experience can be defended as increasing the probability of success through various validation methods in use for more than 100 years. 

Whether we hire one by one or in a high-volume situation, the job typically has existing workers to which the selected candidate or candidates will be added, and this means that any additional worker or workers will immediately change the proportion of those workers who are diverse. 

Over a specific time-frame (e.g. 1 year), the total number of opportunities to hire for a job can be estimated (growth plus replacement plus increases in productivity per person) and the possibility to partially change the proportion of an underrepresented group to be closer to what exists in the available relevant geographic pool can be calculated. If this were done, a case could then be made for determining the diversity of the slate drawn from the pool of sourced candidates that would, over time, increase the under-represented group to one that is representative.

In summary: The challenge of tightening the job context is that it is multi-layered and, for larger firms, requires expertise in calculating opportunity, standardizing job requirements that are linked to success i.e. assess and weight skills first, audit each step for accuracy, address stakeholder bias and plan/defend opportunities that move toward representation. Few firms have been willing to invest in the approach and instead default to practices like SLAs requiring x percent of a slate by race and x percent by gender etc. for every job. These work-around practices may not be defensible for every job unless underrepresentation is clearly documented. With documentation it may be defensible to disproportionately stack a slate of qualified candidates that are diverse to move the underrepresentation of a given job toward greater representation supported by planning data that considers opportunity. 

Upskill Stakeholders 

Selection decisions by Hiring Managers (HMs) are seldom audited. Training HMs on unconscious bias and selection interviews does not work without auditing and reinforcing the changes in behavior (Psych 101). Assessment tests, even those with established concurrent and predictive validity, are too often administered without review or proper application even as the skills, knowledge and experience they were designed to assess evolve- even after candidates complain the testing/interview questions aren’t relevant to the job itself (Face Validity). The aggregate choices made by multiple HMs #hires / #diversity hires is too often driven by annual reports instead of being managed in real time. Data about diversity is too often privately reviewed at the highest levels (chief diversity officer, CHRO, C-level) and held from operational levels- e.g. recruiters who are charged with developing a diverse slate, HR partners and Talent Managers charged with educating HMs on bias. Few recruiters today can access the selection history [including diversity] of a given HM prior to an intake meeting. Recruiters and HR Managers are not typically trained to manage HMs who contribute to an employer’s institutional bias.

In summary: The need to tighten skills and knowledge of every stakeholder is clearly seen in the growing trend to require transparency at work and in hiring with respect to pay, fairness, internal movement, etc. etc. and, this trend will not abate any time soon. It will become easier for employees and candidates to hold firms accountable supported by local, state, national and international laws, and directives. Employers need to upskill stakeholders on 21st century policies and practices, provide them with the people data they need to make decisions and, only then, hold them accountable at all levels.

Conclusion

The SCOTUS ruling is a wake-up call to re-evaluate diversity hiring as not only a fair way to provide equal access, opportunity and protection under the law but to actually move the needle to increase representation for so many underserved groups.