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Employer DEI Initiatives: Students for Fair Admissions and its Aftermath

Key Considerations and Best Practices for Developing and Maintaining Diversity Programs

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, October 4, 2023

Recorded event now available

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This CLE webinar will provide an overview of the U.S. Supreme Court's recent decision in Students for Fair Admissions Inc. v. President & Fellows of Harvard College (U.S. 2023) (SFFA) and certain political repercussions that have developed in its wake. The panel will describe SFFA's potential impact on employer DEI initiatives and provide best practices for counsel when advising their clients on developing or maintaining their DEI programs moving forward.


In its recent decision in SFFA, the U.S. Supreme Court essentially eliminated race as a consideration in the college admissions process. Even though SFFA does not apply to private employers' DEI initiatives directly, the decision has put a target on DEI initiatives moving forward especially given Judge Gorsuch's concurring opinion that appears to invite challenges to such policies under Title VII.

DEI opponents seem to have taken up that invitation. Shortly following the decision, Republican Senator Tom Cotton wrote letters to 51 law firms contending that the firms' clients' and the firms' own DEI programs may be violating federal law based on the SFFA decision. Additionally, 13 Republican State Attorneys General sent a letter to every company on the Fortune 100 list warning that certain workplace diversity policies could be unlawfully discriminatory in light of SFFA and that companies engaging in racial discrimination will be held accountable. Twenty-one Democratic State Attorneys General responded with their own letter to the same companies applauding the companies' DEI efforts. Employers are in the middle of a political tug-of-war.

In addition to the political firestorm developing in SFFA’s wake, the U.S. Supreme Court granted certiorari for Muldrow v. City of St. Louis for its next term that has the potential to lower the standard to bring a Title VII action which could expose employers to a wider range of litigation implicating their DEI initiatives.

Listen as our panel provides an overview of the SFFA decision and discusses its impact on employer DEI programs. Our panelists will also advise counsel on considerations and best practices for developing or maintaining client DEI initiatives moving forward post-SFFA.



  1. Overview of Students for Fair Admissions v. President & Fellows of Harvard College (U.S. 2023)
  2. Political after-effects of SFFA
    1. Republican and Democratic Attorneys General letters aimed at corporate DEI initiatives
    2. Senator's letters to law firms
  3. U.S. Supreme Court grants certiorari in Muldrow v. City of St. Louis
    1. Possible effect on DEI initiatives
    2. Other upcoming cases to watch
  4. The future of DEI: What can employers expect?
  5. Best practices for employers moving forward


The panel will review these and other important considerations:

  • How has SFFA opened the door to legal challenges against employer DEI initiatives?
  • What other significant cases could impact DEI programs moving forward?
  • What effect may political pressure have on employers that are looking to develop or maintain DEI programs?
  • What are best practices for employers and their counsel who are seeking to develop or maintain DEI programs post-SFFA?


McKenzie, Denisha
Denisha McKenzie

CDF Labor Law

Ms. McKenzie is a formidable advocate for advancing diversity and inclusion and regularly assists management with...  |  Read More

Saifi, Osaama
Osaama Saifi

CDF Labor Law

Mr. Saifi is an experienced litigator who has tried multiple jury trials and defended employers and company executives...  |  Read More

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