Prepared remarks: Talk to the National Organization of Lawyers for Education Associations (Oct. 5, 2023)

The Limited Reach of the Supreme Court’s Affirmative Action Decision in SFFA v. Harvard & University of North Carolina: 

Talk to National Organization of Lawyers for Education Associations

Let me begin by sharing a description of the work of Hannah Arendt, the famous philosopher: “light in dark times is precious; it always matters.”  We are, indeed, living in what can feel like dark times, where there is increasing political polarization and a lack of empathy that allows for those with differing opinions to engage in meaningful and constructive dialogue. As lawyers, we have an obligation to be rigorous, professional, and to serve the public. Thank you all for your commitment to this work.

In my talk today, I’d like to discuss diversity, equity, and inclusion programs, including the inaccurate claim that such programs are called into question by recent Supreme Court decisions. More generally, I want to talk about the importance of the ongoing work to advance equal opportunity for all. Finally, I will talk about a different topic that I know is on all of our minds—the state of teen mental health.

Diversity, Equity, and Inclusion

In normal times, diversity, equity, and inclusion programs—or DEI programs, as they are known—would not be fodder for political games or intimidation efforts. But we don’t live in normal times. Instead, some of my colleagues have seized on the opportunity to misconstrue and misread the Supreme Court’s affirmative action decisions to argue that DEI programs, in all their various forms and in all contexts, are now illegal. That’s just wrong.

To correct any misreading of the affirmative action decisions, our department—just this week—issued a legal opinion. That opinion makes plain the important point that employers’ DEI programs that afford equal opportunities to individuals from all backgrounds in the workplace remain lawful. Nothing in the recent U.S. Supreme Court decisions in Students for Fair Admissions, Inc. v. Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina cases is to the contrary. Those cases focus on different legal issues, ruling that race-conscious admissions programs at colleges and universities violate the Equal Protection Clause of the U.S. Constitution and Title VI of the Civil Rights Act. Consequently, employers may continue to use DEI efforts to afford equal opportunity to all workers and to reap the benefits of a diverse workplace.

Equal Opportunity for All

DEI programs are not just legal; they remain critically important. We are not, contrary to what some suggest, living in an era where we have secured equal opportunity for all. Statistics on employment opportunities speak volumes. Consider, for example, that, according to one comprehensive database of employees, 80% to 88% of white men report access to career-enhancing assignments; while only around 50% of women of color report similarly.[1] It should thus not be a surprise that women of color are less likely to hold executive positions.[2]  And, as is widely reported, median earnings for women in 2022 were 83% of the median for men.[3] Finally, a 2021 Gallup survey revealed that 24% of Black and Hispanic employees reported discrimination at work. [4]

Equal access to opportunities can be limited by unconscious biases. And DEI efforts, when properly crafted, can provide effective responses to the impact of unconscious bias. To illustrate the point, one famous finding demonstrated how unconscious bias for years limited women musicians’ employment opportunities. When musicians auditioned for top orchestra positions in full view of the reviewers, only 5% of the musicians in top 5 orchestras were women. But when those orchestras changed their selection practices so that auditioning musicians performed behind a curtain out of view of their reviewers, women came to comprise 35% of all musicians in the top five orchestras.[5] In short, it’s not only lawful, but it’s also most appropriate for those involved in hiring to insist on rigorous evaluation of the critical competencies for the job, rather than subjective, “gut feeling” reactions.

To appreciate the role of DEI efforts, consider the case of employee resource groups (or ERGs) efforts. Our department—like many employers—creates space for the formation of ERGs where a group of employees with shared interests and experiences, along with allies who want to support them, together meet regularly and intentionally enable one another to show up authentically at work and raise concerns. In our Department, our PRIDE ERG and ERG Support People with Disabilities, to take two examples, are supporting employees and allies in impactful ways. Other employers all around the country have established ERGs to support a range of employees, from veterans to working parents to people of racial, ethnic, or religious backgrounds. As two lawyers explained, “[t]hese strategies are legally safe because they benefit everybody, including members of historically dominant groups.  But it’s people at the margins who stand to benefit most, precisely because they are the ones who feel most excluded from workplaces without such initiatives.”[6]

By embracing diversity and practicing inclusion, we open the doors to innovation, creativity, and fresh perspectives. Put differently, employers benefit when they gain the creativity and impact of a diverse workforce. As detailed in the comprehensive and thoughtful recent Report of The New York State Bar Association Task Force on Advancing Diversity, diversity correlates with wide-ranging and far-reaching benefits to organizations.[7] As the Boston Consulting Group found in 2018, organizations with gender and ethnically diverse teams are more profitable and companies with diversity across the board are more innovative.[8] Similarly, in 2020, McKinsey found, in a comprehensive study, that companies in the top quartile for racial and ethnic diversity were 36 percent more likely to have financial returns above their respective national industry medians.[9] In contrast, it concluded that companies with low levels of diversity were 40 percent more likely to underperform.[10] Research also clearly establishes that diversity positions organizations to better work with an increasingly diverse consumer and client base.[11]

Recognizing the continuing existence of unconscious biases and unequal access to opportunities, many organizations have adopted a range of DEI strategies. These include ensuring equal access to mentoring and career development opportunities, intentional recruiting and outreach to diverse communities, and employee resource groups, to name a few. I am pleased to see so many companies proudly re-committing to such programs.[12] The creative initiatives by American businesses and other organizations to engage the talents of all Americans in the workplace is a legal, just, and smart commitment. It should not be hobbled by political agendas that misstate the law.

The Teen Mental Health Crisis

As we think about the important and hard work ahead, our nation’s youth mental health crisis weighs heavily on me. For me, as the dad of two teenagers, it is also personal.  As the Surgeon General put it, the state of teen mental health is in crisis.[13] Our department operates Colorado’s Safe2Tell, a program designed to learn about threats facing young people and report harms before they happen. Through this program, we consistently see that the number one reported threat is suicide.

We are still investigating the causes of the decline in teen mental health and there are many factors at work, including the pandemic, the impact of social media, and, in states like Colorado, the rise of a 4-day school week. The majority of school districts in Colorado only have students in person for four days, leaving students in many cases, without constructive activities on the fifth day resulting in increased time spent on their personal devices.

The harm caused by social media has attracted significant attention—and it should. In the last decade, experts studied how the deliberate design of social media platforms—including the use of addictive techniques and algorithms—keep young people on their platforms for as long as possible, despite the harm such use causes. These same algorithms promote content to young users that negatively impact their self-worth and overall mental health. It was widely reported, for example, that young girls searching for content on how to lose weight on Instagram were shown content on self-harm and even suicide.[14] That’s why our department is co-leading a bipartisan investigation into TikTok’s and Meta’s conduct. We are committed to exposing and remedying any harm they have caused (and continue to cause) our kids.

The availability of dangerous substances available to young people is terrifying. Last spring, we published a report that explained how social media platforms have failed to take effective actions to prevent access to fentanyl and other deadly and illegal drugs. Instead, these fatal substances are as accessible to young people as ordering a pizza.[15] We are now working on appropriate public policy responses.

We also took action against JUUL, which targeted young Coloradans with reckless and deceptive marketing tactics that encouraged vaping and resulted in harmful behavior that damaged the physical and mental health of our youth. Through our litigation, we held them accountable—and now Colorado will receive almost $32 million to invest in cessation and prevention programs, including those tied to teen mental health.

One answer to the rising youth mental health harms is to create more connections for young people. A school district superintendent in Colorado told me that it surveyed its students several years ago and found that on average students only had one trusted adult in the school they could talk to. After making intense efforts to enable more authentic relationship building, that school’s recent survey related that the number was up to 8.  Similarly, Golden High School concluded, after tragically losing several students to suicide, that it had to commit to a program that helps students build trusted relationships with adults and peers. The school then partnered with Sources of Strength, which aims to prevent suicide by increasing help-seeking behaviors and promoting connections between peers and caring adults.[16] Recognizing the power of this program, Sources of Strength was a key part of our $5 million partnership, Healthy Youth/Strong Colorado Fund,[17] which works to improve Colorado kids’ mental health and addressing behavioral health challenges through alternatives to the criminal justice system.

Our department will continue to focus on youth mental health and how we can support our kids. If young people are struggling, even if they are not vulnerable to suicide, they are unlikely to be able to learn effectively. That’s why so many schools I talk to ask for help in how we can find ways to better support young people and help them develop the coping skills they need to thrive. I remain all-in on this critical work.

* * *

I mentioned at the outset that we are living in a dark time. We are. But during this time, there are incredible examples of people and of programs that give us hope. And, we all have the opportunity to bring precious light into our world. We can do that by advancing equality, freedom, justice, and safety for all. That you all for doing that critical work.

 

 

[1] Joan C. Williams, No, SCOTUS Did Not Make Your Company’s DEI Programs Illegal, Harvard Business Review (Aug. 29, 2023), available at https://hbr.org/2023/08/no-scotus-did-not-make-your-companys-dei-programs-illegal.

[2] McKinsey & Company, Women in the Workplace 2022 (Oct. 8, 2022), available at https://www.mckinsey.com/featured-insights/diversity-and-inclusion/women-in-the-workplace.

[3]Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Median earnings for women in 2022 were 83.0 percent of the median for men (Jan. 25, 2023), available at https://www.bls.gov/opub/ted/2023/median-earnings-for-women-in-2022-were-83-0-percent-of-the-median-for-men.htm.

[4]Camille Lloyd, One in Four Black Workers Report Discrimination at Work, Gallup (Jan. 12, 2021), available at https://news.gallup.com/poll/328394/one-four-black-workers-report-discrimination-work.aspx.

[5] Kenji Yoshino & David Glasgow, What SCOTUS’s Affirmative Action Decision Means for Corporate DEI, Harvard Business Review (July 12, 2023), available at https://hbr.org/2023/07/what-scotuss-affirmative-action-decision-means-for-corporate-dei#:~:text=So%20long%20as%20employers%20do,from%20thriving%20in%20their%20workplaces..

[6] Id; see also Williams, supra note 1 (recommending, as best practice, to “open up ERGs to anyone who supports the mission of the group.  You should also make sure your ERGs have a mission statement, business goals, and rules that prevent people from joining the group simply to disrupt it.”).

[7] Report and Recommendations of the New York State Bar Association Task Force on Advancing Diversity (Sept, 2023) (“NYSBA Report”), available at https://nysba.org/app/uploads/2023/09/NYSBA-Report-on-Advancing-Diversity-9.20.23-FINAL-with-cover.pdf.

[8] Rocío Lorenzo et al., How Diverse Leadership Teams Boost Innovation, BCG (Jan. 13, 2018), available at https://bcg.com/publications/2018/how-diverse-leadership-teams-boost-innovation.

[9] McKinsey & Company, Diversity Wins: How Inclusion Matters, (May 2020), available at https://www.mckinsey.com/~/media/mckinsey/featured%20insights/diversity%20and%20inclusion/div ersity%20wins%20how%20inclusion%20matters/diversity-wins-how-inclusion-matters-vf.pdf.

[10] Id. at 5.

[11] See NYSBA Report, pgs. 7-23.

[12] https://fortune.com/2023/06/30/major-companies-ceos-react-supreme-court-affrmative-action-decision-microsoft-salesforce-gm-hp/

[13] Social Media and Youth Mental Health: The U.S. Surgeon General’s Advisory (May 2023), available at https://www.hhs.gov/about/news/2023/05/23/surgeon-general-issues-new-advisory-about-effects-social-media-use-has-youth-mental-health.html.

[14] https://www.cbsnews.com/news/facebook-instagram-dangerous-content-60-minutes-2022-12-11/

[15] Colorado Department of Law, Social Media, Fentanyl, and Illegal Drug Sales: A Report from the Department of Law (March 2023), available at https://coag.gov/app/uploads/2023/03/Colorado-AG-Report-Social-Media-Fentanyl-Illegal-Drug-Sales.pdf.

[16] https://sourcesofstrength.org/.

[17] https://coag.gov/app/uploads/2021/04/Healthy-youth-Strong-Colorado_2021.pdf.