Since 2023, diversity, equity and inclusion (DEI) initiatives have faced an uphill battle from the federal government and Supreme Court, leaving companies, grant committees and universities scrambling to comply with new policies.
At the fifth annual Martha’s Vineyard Summit Thursday, law experts explained what those changes mean for its attendees — many of whom lead diversity initiatives for their companies — and what they can do to continue promoting diversity.
The Martha’s Vineyard Summit is an annual conference that hosts corporate executives for a series of talks and workshops to help them “guide their organizations through transformative change,” according to the summit’s website. The conference was called the Martha’s Vineyard Chief Diversity Officer Summit until 2025, when it changed its name.
Danielle Conley, a legal consultant and former deputy counsel to the President in the White House Counsel’s office during the Biden administration, said at the conference that there has been much overcorrection in response to the administration’s attacks on DEI initiatives.
Companies have pulled back from recruiting at HBCUs, ended partnerships with Black and women owned-businesses and changed the names of grants and programs to eliminate the word “diversity,” she said. Overcorrection itself can actually amount to discrimination.
“I think the reflexive nature of folks in the wake of everything that’s happening is just to do a wholesale scrap of things, and I think that these kinds of reflexive shortcuts are harmful and again, totally untethered to the law,” she said.
The momentum to challenge DEI has been building since the Biden-Harris enacted initiatives focusing on racial justice and civil rights, said Ms. Conley. Anti-DEI efforts culminated in the 2023 Supreme Court decision on the lawsuit Students for Fair Admissions brought against Harvard College, which effectively ended affirmative action in higher education.
Kenji Yoshino, a legal scholar and professor of constitutional law at NYU School of Law, explained at the conference the ideas and ramifications of that decision over the last three years. While it has been limited to college admissions, it emboldened anti-DEI efforts across the board, which the Trump administration continued under a very liberal definition of the term DEI — no formalized definition at all, said Ms. Conley.
“There’s been a very significant chilling effect because people are scared that anything that involves black or brown people might be ‘illegal DEI’ without engaging in an actual…assessment to determine whether that program might actually violate civil rights laws,” she said.
But, Ms. Conley said, there is more room to further equity in the current moment than public discourse makes it seem. Policy pronouncements are not laws, she reminded her audience. A company program is not unlawful because it carries the term “diversity” in its name.
Instead of rescinding opportunities, companies and universities should expand them, she said. That doesn’t mean tailoring opportunities to minority groups, but “widening the pool,” bringing more qualified applicants, partners and suppliers to the table in inclusive recruiting efforts.
Mr. Yoshino explained an “evergreen” strategy to expand diversity that would always be legal: leveling the playing field instead of installing a ramp upwards.
The legal landscape has made minority-exclusive opportunities legally risky, such as an all-woman retreat or a grant only available to people of color. What will never be risky, said Mr. Yoshino, is re-examining the tilted playing field itself.
“We don’t want the thumb on the scale anymore,” he said. “We just want the scale to be accurate. And no court is ever going to say that removing bias from a system is illegal.”
An example of leveling the playing field includes blind hiring or recruiting tactics, bias audits and structured evaluations, said Mr. Yoshino.
He ended with an adage: “‘First they ignore you, then they laugh at you, then they fight you, and then we win.’ That is exactly my experience in DEI,” he said.
“Everybody understands that this is a fight for the soul and identity of the country, if not the world,” he continued. “I am certain that if we keep fighting, we will win.”
“This is a really hard moment,” added Ms. Conley. “This, for me, personally, was probably the hardest year and a half of my professional career. But it’s not hopeless. It’s really not, and I don’t think the law has changed nearly as much as the rhetoric has. The space left to you is wider than the fear that’s out there suggests.”
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