In a recently published Law360 article, “The State Of Play In DEI And ESG 1 Year After Harvard Ruling,” Toni Michelle Jackson, Roy Abernathy and Tiffany Aguiar discuss the impact on state attorneys general of the Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College (SFAA). SFAA ruled that race-based policies should not be used as a factor in university admissions. In July 2023, thirteen Republican attorneys general signed a public letter to Fortune 100 CEOs raising legal concerns of corporate diversity, equity, and inclusion (DEI) plans and considering potential litigation. However, no attorneys general have filed a DEI-related lawsuit, and even after we widened the net to include any ESG-related lawsuits, only environmental claims have been filed by attorneys general. This article focuses on the attorneys general response to the ruling, the effect on DEI and ESG efforts, especially of Fortune 100 companies, and discusses possible ways to minimize potential enforcement actions brought by attorneys general.
