How the Supreme Court’s Affirmative Action Ruling Could Impact the Academy’s New Diversity Requirements

Winston Cho and Scott Feinberg
·5 min read

On June 29, the U.S. Supreme Court struck down the use of racial preferences in admissions at colleges and universities. Legal experts who spoke with The Hollywood Reporter in the wake of the ruling said that companies in the entertainment industry could see a surge of reverse discrimination complaints amid increased scrutiny around diversity, equity and inclusion efforts. While the high court’s ruling is legally limited to higher education and won’t directly impact most private employers, which are governed by a separate set of anti-discrimination laws that don’t allow them to consider race in most hiring decisions, it could scare corporations and organizations in Hollywood from implementing or continuing robust DEI initiatives.

“It’s a slippery slope,” says Jess Miers, legal counsel for Progress for Chamber, which filed a friend-of-the-court brief along with companies including Google, Meta and Paramount. “It starts with admissions programs, but it creates a vague set of rules that could discourage an entity from hosting any sort of DEI program or initiative.”

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Hollywood’s highest-profile DEI initiative is surely the Academy of Motion Picture Arts and Sciences’ “inclusion standards.” Modeled after a similar effort of the British Academy of Film and Television Arts and taking effect this awards season, the standards require a film to meet specific levels of diversity in at least two of four areas — (a) on-screen representation, (b) the creative leadership and project team behind a film, (c) industry access and opportunities and (d) audience development — in order to be eligible for the best picture Oscar, something that heretofore required only theatrical exhibition for a specified period of time in a specified number of cities.

The Academy’s inclusion standards are actually so easily met that virtually every film that was ever nominated for the best picture Oscar in the recent decades would have been eligible to be nominated under the new policy, say sources at the institution. And the Academy reported in May that, according to an annual internal survey, 85 percent of its members want the organization “to lead on representation, inclusion and equity.”

But there has been backlash from many, including some Academy members, to the organization tying a film’s Oscar eligibility to anything other than on-screen merit, most notably when Oscar winner Richard Dreyfuss said back in May that the inclusion standards “make me vomit.” He elaborated, “It’s an art. No one should be telling me as an artist that I have to give in to the latest, most current idea of what morality is.” Plenty of others in town have expressed reservations — but have done so off the record.

Meanwhile, some began wondering if the Academy’s commitment to its own approach to DEI was wavering in recent months as four top Black officials departed the organization, including Jeanell English, who had served as EVP impact and inclusion and shepherded the inclusion standards through their development. On July 15, the Academy’s top brass sought to put a stop to those questions when president Janet Yang and CEO Bill Kramer — a woman of Asian descent and an openly gay man — wrote to members, “We want to reiterate, in the strongest possible terms, the Academy’s commitment to not only continuing, but expanding our efforts to promote diversity and inclusion within our organization and the film industry at large.”

Even so, might the Supreme Court’s ruling on affirmative action embolden others to challenge the Academy in court? Legal experts consulted by THR said that a suit implicating the Academy’s requirements for Oscars eligibility would most likely be filed by individual against a studio or production company. Such a suit could revolve around the argument that a plaintiff was turned down for a job because their would-be employer was looking for an Oscar nod.

A direct challenge to the Academy’s diversity initiative is even more of a longshot due to the backlash that a production company would face — but anything is possible. William Trachman, who wrote a friend-of-the-court brief on behalf of former officials from the Department of Education’s Office for Civil Rights, notes that the Supreme Court’s ruling “gives ammunition” to those kinds of claims, since the justices signaled that racial preferences and quotas are legally tenuous in “nearly every context.”

Even before the Supreme Court’s ruling, many companies were moving away from specifically mentioning race, unlike the Academy. This is at least partially because of litigation challenging corporate diversity programs that allege employers violated federal or state discrimination laws by considering race in employment decisions. In a suit against Pfizer, an organization of medical professionals and students claimed the company’s fellowship program illegally shuts out white and Asian employees by requiring that applicants be Black, Latino or Native American. A similar suit was filed against Amazon over its diversity grant program. America First Legal Foundation, a conservative group founded by Stephen Miller, a White House policy advisor under the Trump administration, has also been filing complaints with the Equal Employment Opportunity Commission against numerous Fortune 500 firms, including Morgan Stanley, McDonald’s and BlackRock, arguing diversity initiatives and hiring practices run afoul of civil rights laws.

Most DEI initiatives, in fact, are now open to all applicants regardless of race or ethnicity. For example, any member of the Directors Guild of America can apply to its Director Development Initiative, billed as a program to increase diversity and inclusion among the industry’s ranks. And while Warner Bros. Discovery’s Music Supervisor Program says “applicants from historically underrepresented backgrounds are highly encouraged to apply,” the company doesn’t require applicants to be minorities. None of the company’s 30-plus DEI initiatives appear to restrict eligibility by race.

But with the Academy’s diversity rules considered so easy to meet, combined with Hollywood’s leftward lean, the inclusion standards for best-picture consideration appear to be safe for now.

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