AAAS Releases Resources on Legal Landscape of DEI Initiatives in Higher Education

By: Kyle Cavagnini
Thursday, October 28, 2021

On October 12, the American Association for the Advancement of Science, in partnership with EducationCounsel and funding from the Alfred P. Sloan Foundation, released its 2021 Diversity and the Law project. This collection of resources outlines the current legal landscape for diversity, equity, and inclusion (DEI) in higher education. The 20 documents compiled by the group include an extensive Handbook on Diversity and the Law, quick-study and key-issue guides, reference materials, and adaptable modules that can be tailored to institutional needs.

A driving theme of this report is that context matters. The authors provide resources to support the resolve of those who do the “work on the ground” to advance DEI goals in higher education, particularly for those in science, technology, engineering, mathematics, and medicine fields. The report provides step-by-step guides to draft DEI policy relevant to faculty and graduate students. The methods outlined include evidence collection to assess institutional needs, determining measurable goals, when to use race/ethnicity and gender-conscious or -neutral strategies, all the while ensuring equity aims remain within the scope of federal law. Each step is accompanied by supporting documentation, such as example surveys, graphic overviews of federal requirements for faculty and graduate students, and quick-study guides for federal nondiscrimination laws, including how they apply to graduate students and postdoctoral fellows.

Under federal law, race/ethnicity and gender-conscious policies express preference to result in a disparate impact on a group. These policies are subject to rigorous standards of judicial review. In contrast, inclusion and multiculturalism are considered neutral categories insofar as diversity is itself an educational benefit. This was reaffirmed in 2016 by the Supreme Court in Fisher vs University of Texas at Austin. In addition to race/ethnicity and gender, neutral polices may consider socioeconomic backgrounds, geographic origins, religion, sexual orientation, and life experiences. Neutral policies are typically less comprehensive than race/ethnicity and gender-conscious policies for DEI efforts. However, they are often more legally insulated to changes and uncertainty in the federal judiciary, an important consideration for longevity of DEI outcomes. The report provides neutral strategies guides for faculty and students.