Supreme Court Bans Affirmative Action in College Admissions: Exploring Potential Employment Implications

Seyfarth Synopsis: In two companion cases involving Harvard and UNC, the Supreme Court held that colleges and universities may no longer consider race as part of the college admissions process.  The schools argued that their policies, which permitted race to be considered as one aspect of an overall holistic review, survived strict scrutiny and furthered a compelling interest in the educational benefits of diversity.  A majority of the Court was unpersuaded. The opinion overturns decades of precedent and leaves employers wondering what it means for corporate DEI  initiatives. The cases and their attendant publicity will spark questions and encourage challenges in other contexts, like employment.  However, the current rulings have no direct legal impact on private employers.

Today the Supreme Court issued much-anticipated decisions in two companion cases that address the validity of race-conscious admissions processes in higher education: Students for Fair Admissions, Inc. (“SFFA”) v. President and Fellows of Harvard College, and SFFA v. University of North Carolina et al.  In a combined opinion, a six-Justice majority of the Court ruled that the policies — which permitted the schools to consider a person’s race when making admission decisions — violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.  The same legal standards apply to both laws, which guarantee equal treatment to all persons, though the Fourteenth Amendment applies only to state schools like UNC. 

Chief Justice Roberts delivered the opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett. There were also three concurrences and two passionate dissents, reflecting sharply divergent views.  Justice Jackson took no part in the Harvard case, given her previous ties to the school.  The opinion reversed the rulings of the lower courts, which had ruled in favor of the schools.

The Court’s Ruling

The admissions policies at both Harvard and UNC permitted a student applicant’s race to be considered as one part of an overall “holistic” assessment of the individual, along with things like grades, references, and extracurricular activities.  The goal of Harvard’s policy is to prevent a “dramatic drop-off" in minority admissions compared to the prior class. UNC’s policy was intended to ensure that its minority enrollment percentage was not lower than the minority representation in North Carolina’s general population.

Because race-based action by government actors is “inherently suspect,” and permitted only in extraordinary cases under the Constitution’s Equal Protection Clause, the Court applied “strict scrutiny” review.  “Strict scrutiny” invokes a two-part standard:

1. Is the racial classification used to “further compelling government interests?”
2. If so, is the use of race “narrowly tailored” to achieve that interest?

The Court ultimately found that the schools’ policies, “however well intentioned and implemented in good faith,” were lacking in both respects.

On the first prong, Justice Roberts opined that, while there is educational value in diversity, there is a limit to the amount of deference afforded to the schools and their policies.  The Court was troubled by the fact that there is no concrete way to measure progress towards the goals articulated by the schools — goals such as encouraging a robust exchange of ideas, fostering innovation and problem-solving and training future leaders.  The Court reasoned, “[a]lthough these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny.”

On the second point, the Court reviewed the admission rates of different races of candidates, finding that race was used as both a positive and negative factor in evaluations.  The Court also repeatedly expressed concern that there is no “end point” to the schools’ race-based admission policies and no defined point at which the race-based measures would end.  The opinion referenced the hope expressed by Justice O’Connor in the 2003 Grutter v. Bollinger decision, that “25 years from now, the use of racial preferences will no longer be necessary,” and noted that neither school claimed its affirmative action policies would lose relevance by 2028.  Justice Roberts also noted that, by treating race as an evaluative factor, the schools were incorrectly assuming that all persons in a race share similar views or experiences.

Notably, the Court stopped short of saying race could have no part in the admissions experience: “[A]s all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”  But, the Court cautioned that considering a student applicant’s specific experiences could not serve as an end-run around its ruling:

A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

The opinion yields conflicting indicators as to how the Court might view race-based policies in other contexts.  On the one hand, the Court warned that “an effort to alleviate the effects of societal discrimination is not a compelling interest,” that could justify race-based action (the dissenting opinions disagreed). This view could have implications beyond college admissions.  On the other hand, the Court declined to speculate on whether or how its ruling might impact areas outside of higher education. For instance, the Court did not address whether its ruling would apply to “our Nation’s military academies,” which have “potentially distinct interests.”  Importantly, it also noted that the “compelling interest” in diversity is different, in education, than it is in the workplace. 

Impact on Employers

The Harvard and UNC rulings will doubtless impact our country’s conversations about race. As we previewed, the ultimate effect they may have on employment is less clear, and more nuanced. 

The (Lack of) Legal Effect on Corporate DEI and Affirmative Action Programs

The rulings have no immediate impact on the legal standards that govern affirmative action and DEI in private employment.  The Fourteenth Amendment does not apply to private companies, and it is Title VII of the Civil Rights Act of 1964, not Title VI, that covers employment. The different legal frameworks, interpreting cases, and agency guidance, thus limit the reach of the rulings and insulate private workplaces from direct effects. 

There is, however, understandable confusion about the scope of the ruling, which stems from an unfortunate convergence of terms:  the same phrase, “affirmative action,” is used to address several wholly different legal scenarios and actions. 

In education, “affirmative action” had historically permitted colleges and universities to consider a person’s race as one factor that determined who did and did not get into a school. In stark contrast, the “affirmative action” in employment has always prohibited any consideration of race in decision-making, such as who to hire or who to promote.  Instead, “affirmative action” in the employment context means an employer commits to “act affirmatively” to support and encourage diversity in its workforce, such as by fostering a work environment that celebrates differences and is welcoming to all.  Likewise, for employers that are federal contractors and subject to requirements under the Office of Federal Contract Compliance Programs (“OFCCP”), “affirmative action” requires targeted diversity recruiting efforts, aimed at increasing the diversity of applicant pools and pipelines. But this, still, does not permit race (or other protected traits) to be used in decision-making.

Importantly, affirmative action in employment does not mean giving any group a priority or preference over another.  Decisions are based on merit alone: who is the best person for the job?  Employers cannot inject race into decisions, the way higher education could before these rulings.  The sole exception in employment is very narrow, and is limited to scenarios where temporary measures are needed to correct a specific, demonstrated racial imbalance in a particular workplace. Even then, however, quotas and set-asides are strictly prohibited.

Because affirmative action in employment is not the same as in education, the Harvard and UNC rulings do not directly apply to private employer action.  They do not legally require companies to make any changes to their existing DEI, EEO, or affirmative action, policies assuming that such practices comply with already existing employment law.  Employers can still have diversity as a core value.  They can and should maintain their EEO policies.  They need not alter course in these areas unless they choose to do so.  Indeed, EEOC Chair Charlotte Burrows released a public statement to this effect today stating in part:

"Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers.

However, the decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace."

This is not to say the Harvard and UNC cases have no practical or legal relevance to employers.  They do.  They signal an increased likelihood that someone, potentially soon, may challenge DEI and affirmative action in employment. In particular, Justice Gorsuch’s concurring opinion points to the path “just next door” where “[b]oth Title VI and Title VII codify a categorical rule of “individual equality, without regard to race.” citing Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 416, n. 19 (1978).  Though starting from a different place, a path has been paved.

It will be important for businesses to monitor legal developments, not just at the Supreme Court level, but in other federal and state and local courts.  Recent rulings have reminded us that a legal standard can be flipped on its head when the right case presents itself.  That has not happened in private employment, at least not yet, and so the status quo remains.

Practical Consequences for Employers

While companies can take comfort in the legal distinctions between educational and employment “affirmative action,” they should not dismiss the opinion as irrelevant.  This is precisely the time to take a step back and examine diversity initiatives and affirmative action policies and practices to ensure that policies are being implemented in accordance with the law.  As noted, with very limited exceptions, employers should not use race or other protected categories when making employment decisions -- even for purposes of furthering diversity objectives. 

Also, as every employer well knows, legal compliance is only one factor among many that influence corporate priorities.  Companies must also consider employee perception and morale, the views of shareholders and Boards, the positions of business competitors, its reputation and media treatment… the list goes on.  That means the cultural response to these cases may be just as important to employers as the law itself.  The opinion and dissenting viewpoints underscore the cultural flashpoints that employers will need to navigate. 

Could these rulings lead to more challenging of corporate DEI and affirmative action programs?  Yes, that is a possible, and even a likely, result.  The decision draws attention to diversity and race, in general, which in turn puts a spotlight on how diversity is addressed in company programs.  While establishing a reasoned workforce diversity goal may not itself be unlawful, employers will likely be forced to explain how such goals were achieved without considerations of race.  There may be heightened scrutiny of business efforts on multiple fronts, and questions from employees and stakeholders about what these rulings mean for their business.  Employers should be prepared to explain how their diversity strategies align with legal and practical considerations and to confirm where their businesses stand. 

The Harvard and UNC cases may put companies on the defensive with regard to DEI priorities and affirmative action initiatives.  Employers may need to spend time, effort, manpower and money addressing questions raised by the opinion.  But, employers need not abandon their ideals or principles, and they need not make hasty decisions that unravel their commitments to ensuring diverse, inclusive and belonging environments for all employees.   This may be an ideal time to invoke the old adage, “Keep Calm and Carry On.”

 

Seyfarth will host a webinar on July 11, 2023 on practical strategies for employers in the wake of the decisions. For more details and to register for the program, please visit the event information page here: Seyfarth Webinar | Impact of Supreme Court’s Fair Admissions Decisions on Employers and Diversity, Equity, Inclusion and Belonging Initiatives.

Seyfarth closely monitors myriad of polarizing cultural issues and how employers can protect against these cultural flashpoints. The breadth of Seyfarth’s LE practice uniquely positions Seyfarth to help balance competing viewpoints while minimizing fault lines, and defend employers in litigation and administrative matters that arise from the tension caused when different belief systems create conflicts. Learn more about our Navigating Cultural Flashpoints in the Workplace work and team.