The Upside of Opening Up DEI Programs to Everyone

Over the past few years in the U.S., more than a hundred federal lawsuits have been filed challenging diversity, equity, and inclusion (DEI) programs in companies, firms, universities, and the public sector. As legal scholars who monitor these cases closely, we have noticed a clear pattern. To avoid legal liability, organizations that formerly restricted diversity programs to specific demographic groups (such as people of color, women, or LGBTQ+ individuals) are now opening such programs to everyone. This shift from targeted participation to universal participation has enabled many organizations to settle their lawsuits. But has this strategy destroyed the purpose of the programs themselves? Not necessarily. Our research suggests that the decline of targeted diversity programs comes with some costs, but there are multiple hidden upsides to the new era of universality. The Shift from Targeted to Universal Prior to the Supreme Court’s seismic 2023 decision ending affirmative action in higher education, many organizations had developed programming such as scholarships or internships restricted to students of color, mentorship programs and leadership retreats restricted to women, or affinity groups restricted to LGBTQ+ people. Since then, a tsunami of lawsuits has challenged these programs. Most recently, the Equal Employment Opportunity Commission filed a lawsuit against a regional Coca-Cola distributor for organizing a women-only corporate retreat. Many organizations have changed course in response to these legal attacks. For example: Fellowships: After being sued by conservative legal strategist Edward Blum, three major law firms changed the eligibility criteria for their diversity fellowship programs to allow anyone to apply, not just those who belong to disadvantaged or underrepresented groups. Scholarships: McDonald’s settled a lawsuit challenging its scholarship program for Latino students by allowing “any student who can demonstrate an impact on or commitment to the Latino community” to participate. Grants: To settle a lawsuit, a nonprofit organization changed its grant program for women and minority entrepreneurs by agreeing not to consider the race or sex of applicants or winners. Internships: The National Museum of the American Latino agreed to open its Latino undergraduate internship program to students of all races and ethnicities, bringing litigation against it to an end. Our litigation tracker shows more than a dozen cases fitting this pattern. And outside of the courtroom, we’ve seen many other organizations quietly open up their affinity groups, retreats, mentorship programs, and other diversity initiatives behind the scenes. While we’re not aware of formal data on how these changes have affected the programs, anecdotally some of our organizational partners have told us that they haven’t seen much difference in participation following a switch to a universal program. This move toward universality is a rational one. As we have previously explained, federal laws like Title VII of the Civil Rights Act of 1964 and section 1981 of the Civil Rights Act of 1866 make it risky to confer benefits like scholarships or employment opportunities based on protected categories such as race or sex. Today’s conservative supermajority Supreme Court is highly unlikely to allow many programs to categorically exclude white individuals or men. The Hidden Upsides of Universality This shift from targeted participation to universal participation might seem like a body blow to the work of inclusion. Targeted programs exist because of a need, like gaps in funding or representation, faced by a specific community. Organizations then adopt a remedy to address that specific need. However, a large body of research suggests that the shift to universalism could help the cause of inclusion in at least three ways. Universal programs encourage effective allyship. First, this shift can harness the power of allies. An ally is someone who leverages their advantages in support of others who lack those same advantages, such as a man who cares about women’s rights or a white individual who supports racial justice efforts. Extensive research demonstrates the benefits when members of dominant or majority groups are engaged in efforts to advance equality and inclusion. One study found that women and people of color received diminished performance and competence ratings when they pushed for hiring more members of underrepresented groups, while white men were spared this penalty. Other studies have found that members of dominant groups are taken more seriously than members of targeted groups when they confront non-inclusive behavior. Yet other research shows that well-meaning allies often hesitate to participate in equality initiatives due to a lack of “psychological standing,” meaning they don’t want to crash a party intended for others. Limiting diversity programs only to certain groups reinforces this perception. Opening programs to everyone can help allies increase their knowledge and develop their advocacy skills by giving them a clear invitation to enter the project. For example, the University of Colorado settled a lawsuit challenging its scholarship for underrepresented medical students by opening eligibility to everyone, with a focus on “those who have had personal experience overcoming hardship or have an interest in working with or advocating for patients who have traditionally experienced barriers to accessing health care.” By widening participation in this way, the university could encourage more allies to get involved in promoting health equity. Universal programs put pressure on non-allies. A more subtle benefit of universal programs is the message sent to dominant group members who don’t consider themselves allies. If you go to a town hall meeting on diversity, it’s a good bet that someone will say: “The people who really need to hear this are not in the room.” Targeted programs give members of dominant groups an excuse to opt out of diversity efforts, as they aren’t eligible to participate in the initiatives. This contributes to a perception that building an inclusive culture is the responsibility of marginalized group members. Embracing universality puts pressure on everyone to pitch in. Organizations could decide not simply to allow but also to expect more men to contribute to gender equality, such as by joining the women’s employee resource group, sitting on a gender equality task force, or participating in a retreat focused on women’s leadership. Universal programs reduce backlash. A final important benefit of universal programs is that they trigger less resistance—not just legally, but socially. One national survey found that some of the most effective pro-DEI messages were universalist, emphasizing how the work enables “everyone to reach their full potential” and reflects “our shared vision for a country where everyone, regardless of background, has a fair shot at success.” By contrast, the most effective message opposing DEI was one that highlighted themes of division and exclusion: “Organizations should be working to bring people together—not divide us by focusing on our differences. DEI programs often create resentment by pitting people against each other and placing people into rigid categories and boxes.” Even as we support the normative case for some targeted programs, we recognize that excluding some groups from participating appears to create winners and losers, stoking bitterness among the people who “miss out.” Triggering such zero-sum resentment can be harmful: Research shows that people with a zero-sum mindset are less likely to support diversity and inclusion efforts in general. Universal programs take this resentment off the table. The Cost of Universality In case we sound too upbeat about the shift from targeted to universal, we want to acknowledge that it comes with some costs. The first set of costs is administrative. When budgets are limited, it might not be feasible to invite everyone in the organization to join a mentorship program or participate in a leadership retreat. In addition, if organizations limit eligibility in other ways—like requiring applicants to have a “demonstrated commitment to” or “interest in” a particular inclusion issue—they will need to devote personnel to assessing such commitment or interest, adding a time and resource burden. Perhaps the deepest cost, however, is the impact on the communities that previously participated in targeted programs. Consider the experience of Audrey, a head of human resources for a healthcare organization, who came to us for guidance. She was considering whether to shut down her organization’s annual retreat for employees of color or open it to everyone. She decided to open it to all but retain diversity as the theme of the retreat. From her perspective, she’d saved the retreat from being canceled. She’d also secured additional funding to cover the anticipated costs of more people attending. She sent out a cheerful announcement to this effect. Audrey thought she’d be hailed as a hero. Instead, she met hurricane-force blowback from the employees of color who had attended the retreat in prior years. The employees understood the legal reasons behind her decision. However, they objected to the “toxic positivity” with which she rolled out the change. As one employee explained, the reason people of color needed to “retreat” from the organization was because they often had a different experience from white employees. Having a space to speak frankly among others who shared their experience helped them overcome isolation and build resilience. We sympathized with Audrey, because we agreed the retreat should be opened to everyone. But we counseled her to clarify at the next opportunity that she didn’t mean to paper over the real downside of doing so. (She took this tack and it went over well.) And now when we counsel other organizations that are making their programs universal, we encourage them to acknowledge what’s been lost before moving on to the more positive aspects of this shift. The Future of Inclusion As organizations struggle to navigate the legal and political minefield of DEI, universal programs provide a legally safe and broadly popular path forward. Organizations don’t need to discard their grant programs, scholarships, mentorship programs, affinity groups, internships, fellowships, and other initiatives focused on advancing inclusion and opportunity. They just need to ensure that anyone who supports those values can participate. The move from targeted programs to universal programs offers a chance for the work of diversity to get beyond the zero-sum game, nurturing cultures where everyone can thrive.

The Upside of Opening Up DEI Programs to Everyone

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