Kenneth Sharperson

Chief Diversity Officer
Armstrong Teasdale, LLP

Kenneth Sharperson is chief diversity officer at Armstrong Teasdale, LLP. He is also a member of the International Association of Defense Counsel (IADC) and the IADC's Diversity, Equity, Inclusion and Belonging Committee.

In recent years, the conversation around diversity, equity, and inclusion has significantly influenced higher education and the private sector. On June 29, 2023, the U.S. Supreme Court issued a landmark ruling in Students for Fair Admissions, Inc. v. Harvard University and University of North Carolina ("SFFA"), fundamentally altering race-conscious admissions policies. This pivotal decision was followed by a January 2024 executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," which seeks to align private-sector diversity, equity, and inclusion initiatives with the new legal standards. These developments present both challenges and opportunities for diversity, equity, and inclusion strategies, particularly within law firms, compelling organizations to rethink their diversity initiatives while ensuring compliance with federal law.

The SFFA decision: A game-changer for affirmative action (and diversity, equity, and inclusion)

Since the landmark Bakke decision, discussions surrounding race-conscious admissions policies in higher education sparked ongoing dialogue about the balance between creating diverse educational environments and ensuring equal treatment for all applicants. Regents of the University of California v. Bakke (1978). The SFFA case, where plaintiffs argued that Harvard discriminated against Asian American applicants by undervaluing objective metrics, shifted the focus to broader questions about race in admissions. In a 6-3 decision, the Court ruled that race-based admissions policies are unconstitutional, violating the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. In February of 2025, the U.S. Department of Education's Office for Civil Rights ("OCR") issued a "Dear Colleague Letter" advising that although SFFA "addressed admissions decisions, the Supreme Court's holding applies more broadly" to all other race, color, or national origin-based decisions and benefits at federally funded educational institutions.

Despite the holding in SFFA, in delivering the majority opinion, Chief Justice Roberts left a door open stating that, while personal experiences related to race could still be considered in admissions, race itself could no longer be a deciding factor.  The Court's ruling overturned decades of precedents, signaling a significant shift in how diversity efforts are approached, both in education and in the private sector. Indeed, following the ruling in SFFA, many private sector businesses began to face increased scrutiny and legal challenges, even though the ruling itself did not apply directly to private employers.

The executive order: Imposing compliance regarding diversity, equity, and inclusion in the private sector

In January 2024, emboldened by the SFFA decisions, President Trump issued an executive order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity." See Executive Order ("EO") 14173. This EO aimed to eliminate what the administration views as unlawful race- and sex-based preferences in various sectors, including education, employment, and government.  With the issuance of this EO (as well as EO 14168), many following longstanding executive actions relating to "DEI" were revoked. See, e.g., EO 11246 (issued in 1965, directing federal contractors to ensure equal employment opportunity and create AAPs for women and racial minorities); EO 13672 (issued in 2014, amending EO 11246 by including sexual orientation and gender identity as protected); and EO 13583 (issued in 2011, establishing a government-wide initiative to promote diversity and inclusion in the federal workforce).

Although EO 14173 lacks any definition of "illegal DEI," it appears to curtail the use of race-based quotas and preferential treatment in hiring or promotions, which are already illegal under Title VII. Nonetheless, the executive orders have caused a significant stir and impacted the private sector.

The impact on diversity, equity, and inclusion strategies in law firms and corporations

The SFFA ruling and the executive orders have far-reaching implications for law firms, where diverse representation in leadership roles is low. Historically, many law firms have relied on race-conscious policies--such as targeted outreach and mentorship programs--to address systemic inequities that resulted in the empirically low diverse leadership. With the legal landscape now shifting, these policies must evolve to ensure compliance with the new regulations.

Although race-conscious initiatives may open up a law firm to risk, law firms can still adopt alternative strategies that foster inclusivity while adhering to the law. Some of these strategies include:

1. Holistic hiring approaches: Law firms should embrace a more holistic approach to hiring, evaluating candidates based on a broader set of factors, such as educational background, socio-economic status, and life experiences. By considering a more comprehensive array of qualities, law firms can continue promoting diversity without relying on race.

2. Expanding outreach programs: Law firms can focus on recruiting from underrepresented communities facing barriers to entry in specific industries. Law firms, for example, might partner with universities in economically disadvantaged areas to offer internships and scholarships, which diversifies the talent pool while staying within the legal limits.

3. Supporting underrepresented groups: Retention is just as critical as recruitment. Law firms can establish mentorship programs, leadership development, and employee resource groups to support diverse employees. These initiatives ensure that underrepresented individuals gain the tools to succeed, improving long-term retention and career advancement.

4. Commitment to equal opportunity: A renewed focus on equal opportunity, as opposed to preferential treatment, can help organizations create a merit-based hiring process. Law firms should emphasize fairness and equal access to opportunities, making sure hiring practices remain non-discriminatory while still promoting a diverse and inclusive workforce.

The future of diversity, equity, and inclusion in a post-SFFA and post-executive order world

The SFFA decision and Trump executive orders have raised important questions about the future of diversity, equity, and inclusion initiatives in law firms and corporations. Can diversity programs still be meaningful without considering race? The answer lies in expanding the concept of diversity beyond race to include other important factors, such as gender, socio-economic status, disability, and personal experiences. Law firms that adapt their diversity, equity, and inclusion strategies to focus on these broader aspects can continue to build diverse and inclusive teams while complying with legal standards.

Moreover, diversity, equity, and inclusion efforts should not be reduced to numerical quotas. True inclusion involves cultivating a workplace culture where all employees feel valued, regardless of background, and have equal opportunities to succeed. This requires creating supportive, engaged environments where diverse employees can thrive without being discriminated against.

Conclusion

The SFFA decision and the EO titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity" represent a pivotal moment in how law firms need to approach diversity, equity, and inclusion strategies. These legal shifts challenge law firms to rethink their strategies, ensuring they remain legally compliant while fostering inclusivity.

As law firms navigate this new legal terrain, they will need to adopt innovative, holistic strategies that prioritize equal opportunity, fairness, and inclusivity without resorting to race-conscious initiatives. By embracing non-race-based diversity, equity, and inclusion strategies, law firms can continue to promote equity in the workplace while adhering to both legal requirements and ethical standards.

Ultimately, the future of diversity, equity, and inclusion lies in law firms' ability to innovate and adapt, ensuring that are promoted through practices that benefit all employees, regardless of race or background.