Overruling Grutter: What Does Ending Affirmative Action Mean for Voluntary DEI Workplace


Zachary Carter
, Former Corporation Counsel for NYC, United States Attorney for the EDNY, Federal Magistrate, and Judge of the Criminal Court NYC 
Taris Mullins, Founder, TGM Consulting, LLC

Brittani McDonald
, Director & Senior Counsel, Labor & Employment, Diageo
David Sarnoff, Principal, Sarnoff Group LLC

What if the Supreme Court overturns the long-standing principles of Grutter? What impact will it have on our workplaces, as well as on our schools? A panel of experts discusses the constitutional and practical implications that may very well go far beyond college admissions and may have significant repercussions on diversity, equity and inclusion programming, employee resource groups and longstanding efforts to promote inclusion.  


“What led to affirmative action being a practice in the first place?” asks David Sarnoff, Principal of the Sarnoff Group. “It’s recognizing the fact that systems are designed to elicit a specific outcome,” said Taris Mullins, Founder of TGM Consulting. “And so the way that our system, particularly here in the United States, has been structured is with race as an underlying input across the board. And so you can think about it in this vein, for systems that have been codified to ensure that certain folks maintain their rights at the cost of other folks. There’s no incentive to necessarily want to see that adjust or change.”  


Zachary Carter (Former Corporation Counsel for NYC, United States Attorney for the EDNY, Federal Magistrate, and Judge of the Criminal Court NYC) points out misconceptions around affirmative action  by pointing out that some have tried to make the conversation about helping some people and hurting others, picking winners and losers — when in fact affirmative action is about increasing diversity across the board so that diversity becomes part of everyone’s lived experience.  


In describing the genesis of affirmative action, Carter points to the history of slavery in America and the relationship that America still has with the people who were once its slaves: “When you accept that there has been an unbroken continuum, from slavery, to sharecropping, to Jim Crow, to racial segregation, that is, has been official and sanctioned by law, and racial discrimination, that has been a product of stubborn patterns of residency in the United States. Affirmative action is necessary to make a valiant attempt to put that particular genie back in the bottle. That is, to disrupt the stubborn belief system about the inferiority of the descendants of slaves, particularly in the area of intellect.” 


Brittani McDonald, Director & Senior Counsel, Labor & Employment at Diageo, asks what would happen if the Supreme Court overturns Grutter and affirmative action cases. She asks the panelists to reflect on how this might affect the DEI commitments that many private corporations made and funded in the wake of the George Floyd protests in 2020.  


Mullins replies that “this decision is not going to be some hammer drop on DEI programming commitments in the private sector, and organizations that have really started to reimagine how they show up….Research has shown overwhelmingly that diverse teams actually performed better, they innovate more, clients were more satisfied and [they produced] better returns on investment. Many organizations are going to be at a very real inflection point of asking themselves, who do we want to be? And how does that show up?” 


With that being said, Mullins also adds concerns about the potential cascading effect of a Grutter ruling that ends affirmative action. “This is also going to be a potential canary in the coal mine of seeing what is the Court’s appetite for arguments of this nature…[it] might become a snowball effect to future cases that could have much more direct implications on private employers down the road.”  


Carter agrees, saying that “we have to be relentless in making the case that diversity is an important value, not just to formerly, to traditionally disenfranchised people, either based on race or gender, but to the institutions and the companies that embrace diversity as a value in terms of improving the quality of decision making. And among the audiences that have to be impressed, in a profound and personal way, are the nine justices of the U.S. Supreme Court.”  


Mullins outlined some considerations for people and corporations who want to be sure that they remain committed to DEI efforts even in an environment that may turn less supportive of them. It “starts with the leadership…with ensuring that the people who are sitting at that decision-making table understand why this matters. Maybe it’s selfish, it matters because it hits your bottom line and we know that that matters, because you want to make money. Maybe it matters because you want to vie for the best top tier talent and that talent wants to work with diverse teams.” Mullins reiterates that the goal of DEI efforts is to make diversity part of everyone’s lived experience, which means upending the current status quo in which a 15-person Board room with 14 White men is unremarkable. And the expectation that trickles down from there is that the White men are the natural leaders. 


The panel also discusses ways to secure the pipeline for kids from underrepresented groups to get into higher education and into the workplace. “We have to live up to our conviction that these kids of color who have suffered, you know, disadvantages of low expectations, of outright discrimination, of economic disadvantage, are as talented as necessary to succeed, and that there are holes that we can work to plug in their experience base that will have this story turn out differently,” Carter said. 


Mullins pointsout that no matter what companies choose now, the next generation is already demanding fidelity to DEI issues. “It might end up that you’re going to lose great talent, that narrative is going to get out there, the communities will talk to each other and say, ‘This is not the space that you want to work in no matter how much they’re going to be paying you.’” 


The panelists emphasize the need to keep the DEI discussion alive because, as Mullins puts it, 

“Silence equals death….We don’t have the conversation if we don’t raise this and really think thoughtfully about the implications of how this is going to impact not just the pipeline of well qualified, amazing students in our higher education system, but the implications for us in our private and public sector spaces. We’re already going to be behind the eight ball.”


This virtual event is the first in a series exploring the future of voluntary DEI across sectors. The next installment in this series will take place at the City Bar building on Thursday, July 13 from 6:00PM – 8:00PM, analyzing the Supreme Court’s impending decision, lessons learned from California, and the anticipated impacts on the pipeline. Following these panels, stakeholders will come together in September to draft a commitment to pipeline work. Finally, in October, stakeholders are invited to an in-person day-long conference in which they will have the opportunity to learn from industry experts how to establish their own pipeline programs, connect with pipeline partners, and commit to the pipeline.

Sponsoring Committee:
Diversity, Equity & Inclusion
, Brittani McDonald and David Sarnoff, Co-Chairs

Co-Sponsoring Committee:
Labor & Employment,
Tracey Salmon-Smith, Chair
Education and the Law,
Rebecca Berkebile and Jonathan Glater, Co-Chairs

Co-Sponsoring Organization:
New York City Bar Office for Diversity, Equity, Inclusion and Belonging, Tanya Martinez-Gallinucci, Executive Director