Following the groundbreaking 2023 case, Fair Admissions v. Harvard, there have been various lawsuits filed against state governments, law firms, and corporations to challenge their diversity, equity, and inclusion (DEI) initiatives, including the consideration of race, gender, sexual orientation, and other criteria involved in hiring practices. At the CLM 2024 Annual Conference session, titled, “In Defense of DEI: How the Courts are Being Used to Attack Diversity, Equity, and Inclusion,” speakers Robert Kopka, managing partner, Kopka Pinkus Dolin; Caryn Siebert, vice president, carrier practice, Gallagher Bassett Services, Inc. and recipient of the 2024 CLM Lifetime Achievement Award; Alecia Walters-Hinds, partner, Lewis Brisbois Bisgaard & Smith, LLP; Gwen Gatson-Long, senior claims specialist, Gallagher Bassett; and Carey Bond, head of claims, Americas, Lloyd’s of London, discussed why maintaining DEI programs and practices is important, as well as strategies that can be implemented to keep them in place in the current legislative climate.
Background: The 14th Amendment
“It really starts with an understanding of the 14th Amendment,” said Kopka. “The 14th Amendment is one of the three Reconstruction amendments…. [It] guaranteed every citizen equal protection under the law and due process under the law…. The idea here is that it was really meant to guarantee formerly enslaved people in the U.S. the same rights as everybody else—and the 14th Amendment says ‘no state shall….’ So, it really prevents the states from prohibiting any citizen the same rights that are guaranteed by the federal government.”
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Kopka also described historical Supreme Court cases, such as Brown v. Board of Education, which declared that segregation based on race was unconstitutional. Throughout history, he continued, “The Supreme Court has struggled with the notion that, on the one hand, any consideration of race in education is unconstitutional on the grounds of Brown v. Board of Education, but in order to rectify historical wrongs…universities, in this case, considered race as a factor in admissions.”
Impact of Students for Fair Admissions v. Harvard
“Now, with the Students for Fair Admissions—it was an interest group interested in opposing this concept of utilizing race in admissions,” explained Kopka. “It was an interest group that gathered together some Asian American students…[and] their argument was, if race wasn’t considered at all, there would be a higher percentage of Asian American students at Harvard because they do well in school…a lot of Asians get high scores, and by considering race and diversity of the class at Harvard, Asian Americans suffered—some didn’t get into the school.”
As a result, Kopka continued, “the Supreme Court ruled in favor of the Students for Fair Admissions. They ruled that Harvard’s admissions program…violated the 14th Amendment because race was considered too strongly as a factor in admissions…. As a result of that decision, it emboldened people who are opposed to diversity efforts, and so now there have been lawsuits [and] threatened lawsuits against law firms, corporations, and other universities for using DEI or race in consideration in hiring practices.”
Siebert noted, “We’ve all experienced [discrimination in] some way, somehow. One of the reasons I’m passionate about this is I want to see us as a society change things for existing generations and future generations…. What we don’t want to see is going backwards in time and having these things happen again.”
Kopka added that some say DEI initiatives, such as affirmative action, have a lifespan and should be eliminated at some point. He asked Bond, who grew up in the segregated south, whether we are at the point where this should be done. “I’d say that we are not there…the way you change the world is through education…I will say that African Americans have had and still have…a unique experience. We are the only people who were brought to this country in chains. The vestiges of that still exist in some ways…. In my view, in my experience, education is the key to equality. So, have we gotten there? No. Are we working on it? Yes.”
Walters-Hinds referenced a 2024 case, Joshua Young vs. Colorado Department of Corrections. “Joshua Young is claiming discrimination based on Title VII and the Equal Protection Clause…saying that he was discriminated against not based on hiring, firing, promotion, but based on their…equality, diversity, and inclusion…and he’s saying that, as a result of being forced to take mandatory DEI training, he was subjected to a hostile work environment…there was a lot of going over the history of the country, white supremacy…just a lot of terms that made him feel extremely uncomfortable…. So, he brought an action claiming discrimination.”
The court ultimately dismissed the claim, Walters-Hinds continued; however, it commented that Young’s objections to the training were “not unreasonable” and that DEI training “can create a hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectation of…treatment.” She added that the comments further opened the doors to more lawsuits. “It just shows how dangerous it is and how…you really have to be careful, and we have to keep on pushing DEI but also be conscious of what we’re saying [and] how we’re saying it.”
Kopka then pointed to the fact that 17% of the population is African American, yet only 5% of all attorneys are African American. “It just shows you that the number of African Americans who are attorneys—it needs to continue to improve, which would tend to justify using race as a factor of admission to law school, just in order to correct that historical wrong…”
Gatson-Long responded, commenting that “the fact is, communities of color don’t have the resources to implement wider programs. Each organization works with so many people. But in the broader community, there aren’t enough resources. The other communities that don’t have to worry about those resources, don’t need the additional programs, and then the funding is there, and then it’s not. And then it’s enough, and then it’s not. And then it stops, and then you have nothing. So, affirmative action works when it helps and removing it without something in place that actually satisfies or brings in more people of color is not enough.”
Equity and Education
“The first pillar is awareness and education. If people aren’t aware, and they’re ignorant and not educated that there’s an issue…let’s have a subcommittee work on the awareness and education around the room of what we’re doing,” explained Seibert. “From there, we go to the not just having a calendar—Black History Month, Women’s History Month, Pride—not just sit there with a calendar and a checkbox. What are we doing about it? Are we going to do a class on unconscious bias? Are we going to do a class on appreciating differences?”
Siebert then referenced an example of a photo that was shown at a DEI panel at the Focus Conference in Nashville, in which three people of different heights viewing a baseball game over a seven-foot-tall fence. The three people are five, six, and seven feet tall. “If you give that person who’s five-foot a two-foot box, and the person who’s six-foot a one-foot box, and the seven-foot person nothing, what’s going to happen? What if I told you one of the people is in a wheelchair? They don’t need a box!”
Gatson-Long responded, “We don’t all need the same thing to get to the same spot. Some of us need a little more help than others. With the person in the wheelchair, a box is not going to help. They actually need a ramp. You can find a ramp for the wheelchair accessible person, you can find the higher box for the shorter person, and then the one person can stand and look over the fence—they may not need anything to be able to interact or work within the confines of what the particular project or program is…Some of us need a little more…and we base that on what we have, what’s been taken from us. Over the years, so much has been taken away, so you have to give a little more to those who have had more taken in order to bring them to the same level to be able to participate.”
Bottom Line
A law from Texas passed last year banned DEI initiatives in public institutions, according to an audience member. Sixty people were fired from the University of Texas as a result, and the audience member feels as if we are moving back in time to the 1950s. Bond responded that we need to keep our vision and our focus level, keep our eyes on where we want to be, and not lose sight of that because of the laws that are passed that seem to move us backward.
Walters-Hinds highlighted the importance of allyship and sponsorship. “All those things matter. People like you guys who understand the importance of diversity, what it adds. For example, in the legal profession, whether you’re a trial attorney or whatever it is, it’s great for business. It’s great to relate to different people and talk about different experiences that they’ve had. I always stress the importance of allyship, sponsorship. All those things matter a lot, because they help others get to where they need to be.”