Happy Friday. It’s time to go back to school.
I’m referring to the affirmative action cases involving Harvard and the University of North Carolina, now in the hands of the U.S. Supreme Court. If you’re not worried, you should be.
“It’s really shocking,” says Professor Alvin B. Tillery Jr., director of the Center for the Study of Democracy and Diversity at Northwestern University. “I've been telling all of my clients that the next three months will be crucial for developing alternate pathways to continue to do their equity work when the court rules,” he says. “No one's talking about what's coming down the pipeline.”
What’s coming is a decision, likely this June, that's almost certain to be a watershed moment. The Supreme Court is widely expected to overturn, or at least radically redefine, race-conscious admissions practices for colleges and universities, a move that could have wide-ranging and unpredictable consequences outside of academia.
Tillery is steeped in the issue in two ways.
In addition to his academic work, he applies his research as a DEI consultant, pollster, data scientist, and founder of the 2040 Strategy Group, which works closely with Fortune 500 clients. “They’re all focused on talent acquisition, headcount, inclusion,” and other diversity issues across their stakeholder ecosystems. “I keep saying to them, 'Have you been thinking about the Supreme Court cases? Do you want to be caught flatfooted like you were in Dobbs [the decision to overturn Roe v. Wade]?'”
This week I moderated an in-depth discussion with Tillery and attorney Debo P. Adegbile in an intimate convening of leaders, educators, and other experts hosted by David Sutphen, founder and co-CEO of Jasper Advisers. (Long-time raceAhead readers might recognize the inclusion veteran from my feature, Leading While Black, an analysis of what holds Black men back in corporate life.)
Adegbile is a former commissioner of the U.S. Commission on Civil Rights and currently chairs the anti-discrimination practice at WilmerHale, where among other things, he leads civil rights and equity audit work. He’s also one of the attorneys representing Harvard in the affirmative action case. “This is one of the biggest civil rights cases in recent memory,” he said. “This is about the pathway for educational opportunity, which is about the pathway to achieve the American dream and to ensure that the zip code into which you are born does not determine where you end up in life.”
After laying out the ideological foundation of the objections to affirmative action—that any consideration of race is a form of segregation—he explained that a decision limiting talent recruitment tactics to “race-neutral measures” could make putting together a diverse cohort of students, interns, senior leaders, board members, and the like, much harder.
What indirect and meaningful proxies could you use to access a pool of Black, Hispanic, Indigenous, or Asian American talent? It gets complicated very quickly.
If affirmative action is overturned or limited, Adegbile says to expect a “contagion effect.”
Adegbile notes that while the outcome of the ruling is not yet known, “There are people waiting to take the words of any adverse ruling and bring carry-on cases in a different context."
“There are already people filing cases that are pushing back on the administration, and on corporate America, for any efforts to lean forward and try and introduce something that looks like it expands equity and opportunity,” he adds.
And that could look like a legal, shareholder, or grassroots challenge to any aspect of an inclusion program.
“I do think that explicit invocation of race for talent sourcing or supplier diversity programs will create some dilemmas,” says Tillery. But he cautions against losing hope. Some 95% of Black students and 90% of Latinx students attend schools that do not use affirmative action, like state universities and community colleges. “Corporations are going to need to source talent from where it exists. And increasingly, the elite institutions where affirmative action matters are not those spaces,” he says. Changing demographics and younger, inclusion-minded leaders will also help.
Until then, it's time to put a game plan of possible scenarios in place. Feel free to forward this newsletter to anyone in your organization who needs the boost—and let me know what strategies are top of mind for you.
Ellen McGirt
@ellmcgirt
Ellen.McGirt@fortune.com
This edition of raceAhead was edited by Ruth Umoh.
