Overreach and Overreading – Mary T. O’Sullivan

Overreach and Overreading – Diversity, Equity and Inclusion (DE&I)

by Mary T. O’Sullivan, MSOL, contributing writer

What “Students for Fair Admissions v. Harvard” Really Means for DE&I

 “[Conservatives] are relying heavily on a two-year-old Supreme Court precedent that says virtually nothing about diversity in the workplace”. – CNN

Once heralded as a cornerstone of innovation, productivity and industrial competitive advantage, Diversity, Equity and Inclusion (DE&I) efforts have almost been completely eliminated in the government and private industry. However, the war on Diversity, Equity and Inclusion in the United States may be misguided. The argument against DE&I programs stands on shaky legal ground, citing only a shred of evidence in the controversial Supreme Court ruling against using affirmative action in college and university admissions. In other words, the Supreme Court specified that colleges and universities could not use race as determining factor in their admissions process. The ruling does not mention DE&I in any other context, and in no way negates Title VII of the Civil Rights Act of 1964.

In fact, the anti-DE&I school of thinking relies heavily on an assumption that if the Supreme Court determines that race can’t be a factor in college admissions, then it automatically applies elsewhere, specifically the workplace and all of government. In fact, the decision in Students for Fair Admissions versus Harvard “uses precise language to delineate its scope, ensuring that its ruling is confined to the specific context of Harvard’s admissions practices rather than serving as a broad mandate on all race‑conscious policies.” (Stanford Law School) The SFFA v. Harvard decision, therefore, serves as the launching pad for the current movement to eliminate affirmative action and DE&I specifically. Furthermore, the Court did not declare that the use of race in admissions is fundamentally unconstitutional. Instead, the decision states that the legal analysis applies “only to the manner in which Harvard implemented these practices.” – The Independent Sector.

DE&I proponents maintain that the Supreme Court precedent in the Harvard case is misapplied by those who seek to hamper diversity programs. The argument is that the Court’s ruling is so narrow and specific and has nothing to do and no influence over DE&I programs other than in the Harvard case. Moreover, the benefits of creating an inclusive workforce are well documented. Minority advocates are concerned that an overreliance on such a limited interpretation of the ruling could undermine conscientious efforts to deter systemic biases and impede workplace environments where everyone has an equal opportunity to succeed.

The extent of this misinterpretation is wide and pervasive. Attorneys General are petitioning major corporations to drop their DE&I programs by citing this case as “law”. Costco was told, “For the good of its employees, investors, and customers, Costco should ‘do the right thing’ by following the law and repealing its DEI policies.” But, as mentioned, there is no law enacted by Congress banning DE&I. CNN reports that legal experts say that “the notion that the Supreme Court’s 6-3 decision in Students for Fair Admissions v. Harvard spells out rules for the private sector is wishful thinking on the part of DEI critics.”

Opponents of DEI are “kind of deliberately overreading the decision in order to engage in a lot of bluster and threats,” said David Glasgow, a New York University law professor and executive director of the Meltzer Center for Diversity, Inclusion, and Belonging. “The case didn’t say anything about private employment or DEI at all,” said Brent Siler, a labor lawyer at the Adams and Reese law firm. “DEI is not illegal, in and of itself…”

Red Flag

Sadly, this case has morphed from a red herring to a red flag. Conservatives claim that DE&I efforts are “unlawful” and “illegal”, but that is not the case at all. The Harvard ruling addresses colleges and universities admissions procedures only. Congress has not legislated any laws specifically banning DE&I, but they have laid down the law in Title VII, the Civil Rights Act of 1964 and its amendments. As Americans, we need to remember that in the three equal branches of government, only Congress is empowered to pass legislation. Therefore, refusing to abide by a false flag approach, bears no legal consequences. Congress also has the responsibility to allocate funds, making the threat of withholding funds also out of line, and maybe illegal. No doubt the courts will be busy this coming year as companies, institutions, and other organizations try to keep their funding and execute their businesses in good conscience.

If Congress can’t act to clarify the law, the courts will have to step in. Taking a sliver of a ruling and changing major parts of industry and government is causing much confusion and chaos. The gaps left by the Supreme Court in its Harvard ruling will have to be filled with something people can live by. Unfortunately, the Court created an unintended consequence: a wedge issue like DE&I that opponents can latch onto and capitalize on. DE&I can be an emotional issue and cause deep divisions. At this time in history, we need to learn to recognize when a wedge issue appears and is deliberately used to cause chaos, confusion, and divisiveness. In the case of DE&I, the Court’s vagueness in their ruling in the Harvard case gave DE&I opponents the opening they’ve been waiting for.

“Our focus on diversity, equity and inclusion is not, however, only for the sake of improved financial performance but to enhance our culture and the well-being of people whose lives we influence.”

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Read all Mary’s columns here: https://rinewstoday.com/mary-t-osullivan-msol-pcc-shrm-scp/

Mary T. O’Sullivan, Master of Science, Organizational Leadership, International Coaching Federation Professional Certified Coach, Society of Human Resource Management, “Senior Certified Professional. Graduate Certificate in Executive and Professional Career Coaching, University of Texas at Dallas.

Member, Beta Gamma Sigma, the International Honor Society.

Advanced Studies in Education from Montclair University, SUNY Oswego and Syracuse University.

Mary is also a certified Six Sigma Specialist, Contract Specialist, IPT Leader and holds a Certificate in Essentials of Human Resource Management from SHRM.