Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On October 31, 2022, the Supreme Court of the United States (SCOTUS) heard oral arguments for two controversial affirmative action cases against Harvard University and the University of North Carolina (UNC). While the legal framework for affirmative action programs and diversity, equity, & inclusion (DEI) initiatives differ across academic and employment contexts, these high-profile decisions are bound to have implications for private employers and federal contractors.
In 2014, Students for Fair Admissions, Inc. (SFFA) brought two lawsuits against Harvard and UNC. In both cases, SFFA—a non-profit group opposed to racial preferences in college admissions—alleged that Harvard and UNC violated Title VI of the Civil Rights Act of 1964 by, among other things, intentionally discriminating against Asian-American applicants, employing “racial balancing,” failing to use race as a mere “plus factor” in decisions, and failing to utilize race-neutral alternatives. In challenging the admissions policies, SFFA requests that SCOTUS overrule Grutter v. Bollinger, 539 U.S. 306 (2003), the landmark case in which SCOTUS held that a “race-sensitive” admissions program that considers race as only one factor and gives individual consideration to each applicant is lawful.
In January 2022, SCOTUS accepted an appeal from the First Circuit and agreed to hear SFFA’s case against UNC. SCOTUS heard oral arguments in the Harvard and UNC appeals on October 31, 2022.1
Overview of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
In 2014, SFFA initiated its case against Harvard in the United States District Court for the District of Massachusetts (Boston).2 SFFA argued that Harvard’s admissions policy/practices violate Title VI of the federal Civil Rights Act, which prohibits racial discrimination by entities receiving federal funding.
In general, applications pass through a multi-tiered process when they arrive at Harvard’s Admissions office. Throughout this process, admissions officers may consider race as a single factor in an otherwise far-reaching review of applications, and the Dean of Admissions shares the projected racial makeup of the admitted class with the full committee throughout a year’s admissions cycle, which may influence offers.
SFFA alleges that Harvard’s admissions policy violates Title VI by intentionally discriminating against Asian-American applicants, employing racial balancing, failing to use race as a mere “plus factor” in decisions, and failing to utilize race-neutral alternatives. The district court agreed with SFFA that “strict scrutiny”—the requirement that a race-conscious program be “narrowly tailored” to a “compelling interest”—was the right standard under which to review its claims. But ultimately, the district court found no evidence of intentional discrimination or racial balancing. Among other things, the district court found that that the admissions practices of Harvard followed the “plus factor” under Grutter because “race [is] used in a flexible, nonmechanical way,” and Harvard “engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Also, the district court noted there was no significant or clear statistical evidence of bias against Asian-American applicants. And finally, the district court found that a race-neutral admissions model that weights for low socioeconomic status was not a workable alternative, as it would both reduce racial diversity and lower average entrance test scores.
The U.S. Court of Appeals for the First Circuit upheld this decision in favor of Harvard.3
Overview of Students for Fair Admissions, Inc. v. University of North Carolina
In 2014, SFFA initiated its case against UNC in the United States District Court for the Middle District of North Carolina.4 As in the Harvard case, SFFA claims that UNC’s admissions process unfairly uses race to prefer underrepresented minority applicants to the detriment of White/Caucasian and Asian-American applicants, and therefore violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution and Title VI.
In general, when an application is submitted to UNC, it also undergoes an extensive and multi-tiered review process. Part of that review includes approximately 40 admissions criteria in eight categories that may be considered at every stage of the evaluation process—academic program, academic performance, standardized testing scores, extracurricular activities, special talent, background, and personal attributes. Though race, ethnicity, or national origin may be used at any part of UNC’s admission process, at no point during that process are candidates of different racial groups reviewed, considered, or evaluated in separate groups, and admissions officers are trained to consider race and ethnicity as a single factor in an otherwise holistic review of application materials.
As in the Harvard case, the UNC application process was evaluated by the district court under strict scrutiny. And as in the Harvard case, the district court determined that the UNC admissions process withstood strict scrutiny and was constitutionally permissible under the Equal Protection Clause. In its 155-page decision, the district court explained that (1) UNC had a compelling and substantial interest in pursuing and attaining the educational benefits of diversity; (2) to accomplish its interest it was necessary that UNC admit and enroll a diverse student body to include racial diversity; (3) UNC engaged in a highly individualized, holistic admissions process narrowly tailored because it considered race flexibly as only a “plus factor” among many factors for each applicant; and (4) UNC had conducted good-faith, serious consideration of race neutral strategies and had found no alternatives at tolerable administrative expense.
SCOTUS permitted the UNC appeal to bypass consideration by the United States Court of Appeals for the Fourth Circuit.
Oral Argument Highlights
SCOTUS heard oral arguments in the Harvard and UNC appeals on October 31, 2022.5 As anticipated, the arguments on both sides overlapped in various ways. In general, SFFA requested that SCOTUS overturn Grutter and ban race-conscious affirmative action programs for public and private universities. Both Harvard and UNC defended their admissions policies as using race as a mere “plus factor” in an overall holistic admissions process that aligns with past high court cases. And in both hearings, the Justices fired away complex questions for SFFA, UNC, and Harvard to promptly address.6
For instance, in the UNC hearing, Justices Sotomayor and Jackson pressed SFFA for evidence that race was being used as the determinative or singular factor in admissions, and whether it was appropriate (or even possible) to “shunt aside” the correlation between race and other personal experiences, like socio-economic status, cultural practices, and family history. On the other hand, Justice Thomas requested that UNC explain the “educational benefits” of diversity, given that Justice Thomas himself did not go to a racially diverse school but still benefitted from his academic courses. In both the UNC and Harvard hearings, Justice Kavanaugh and Barrett emphasized to UNC that Grutter seemingly imposed a “25-year” expiration date on affirmative action programs, and there seems to be no end in sight. Further, in the Harvard hearing, Chief Justice Roberts questioned “whether or not granting a credit based solely on skin color is based on a stereotype when you say this brings diversity of viewpoint.”
Finally—and of importance for employers—in the Harvard hearing, Justice Kagan asked SFFA whether judges can consider the benefits of diversity when choosing whom to hire for judicial clerkships. She added, “businesses …find it necessary… in order to achieve their economic objectives to have racially diverse workforces…[a]nd the question is, when race-neutral means can't get you there, don't get you there, when you've tried and tried and they still won't get you there, can you go race-conscious?” SFFA was adamant that, even then, race-conscious decisions are impermissible.
Key Takeaways for Private Employers and Federal Contractors
If SCOTUS overturns Grutter and invalidates Harvard and UNC’s admissions programs, employers will need to review the basis for the decision to determine its impact on voluntary DEI measures carefully. This decision is not expected to have any direct impact on the affirmative action requirements that apply to federal contractors. Although the set of requirements that apply to federal contractors is often referred to as “affirmative action,” the applicable laws do not permit employers to consider race or ethnicity in making employment related decisions and, therefore, do not raise the types of concerns that are at issue in the Harvard and UNC cases. That said, looking far down the road, SCOTUS’s decision in the Harvard and UNC cases could represent a further step down a path, first identified by Justice Scalia in his concurring opinion in Ricci, toward arguing that disparate impact theories of discrimination violate the Equal Protection clause.
Voluntary Affirmative Action and DEI Programming for Private Employers
Affirmative action in employment, in its original sense of explicitly considering race or sex in making employment-related decisions, is a largely dead concept. The current state of the law appears to be that employers may engage preferences, if they have a “strong basis in evidence” that remedial action is necessary, which is usually to remedy a demonstrated history of past discrimination. See Section 15-VI-C of the Compliance Manual section on Race and Color Discrimination. However, employers are almost never interested in admitting the type of past discrimination that would be required to justify preferences under this standard. But, if SCOTUS acts as predicted and prohibits race consciousness in university admissions, their decision may lead the Justices to take a fresh look at a separate bucket of case law that pertains to voluntary employer diversity programs.7 Meanwhile, employers should remember:
- Employers must hire and promote based on business-related criteria.
- Employers must not interview or hire individuals from historically marginalized communities simply to meet a quota in a diverse slate policy.
- Hiring managers should be trained on federal and state equal employment and anti-discrimination laws so they understand the legal framework governing their employment decisions.
- Employers may consider incorporating unconscious bias training to further prevent unlawful (albeit inadvertent) employment decisions based on protected characteristics. However, employers should consult with counsel to ensure that any such training is constructed so that it does not run afoul of “anti-Woke” laws in certain jurisdictions.
- Remember that in successful DE&I programs, one size does not fit all.
On the Horizon
SCOTUS will discuss and evaluate these cases in a private meeting, without law clerks or other staff. They will provide their respective thoughts and then take an initial vote on the outcome. If Chief Justice Roberts is in the majority, he will either assign the writing of the opinion to himself or to another justice on the same side. The final decision in this case will likely be released at the end of the current term—in late June or early July.
As these controversial cases are evaluated by SCOTUS, federal contractors and private employers should keep a close eye on legislative and regulatory developments across the country to ensure that their affirmative action and DEI initiatives comply with federal and state anti-discrimination laws.
1 SCOTUS initially consolidated the Harvard and UNC cases and agreed to decide the cases together. But in July 2022, SCOTUS released an order stating that the two cases had been de-coupled.
2 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126 (D. Mass. 2019).
3 Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020).
4 Students for Fair Admissions, Inc. v. Univ. of N.C., 567 F. Supp. 3d 580 (M.D.N.C. 2021).
5 SCOTUS Hearing Transcript for Students for Fair Admissions v. University of NC (Oct. 31, 2022); SCOTUS Hearing Transcript for Students for Fair Admissions v. President and Fellows of Harvard (Oct. 31, 2022).
6 Chief Justice John Roberts, as well as Justices Clarence Thomas and Samuel Alito, have opposed race-conscious admissions in previous cases. Meanwhile, Justices Neil Gorsuch, Ketanji Brown Jackson, Brett Kavanaugh, and Amy Coney Barrett have yet to rule on a race conscious admissions case. Justice Jackson, who joined SCOTUS in June, recused herself from the Harvard case given her prior status as a member of the University’s Board of Overseers. Justice Jackson did participate in the UNC decision. But it would take only two justices to join Roberts, Thomas, and Alito’s opinions to overturn Grutter and ban race conscious admissions programs in higher education.
7 A “voluntary employer diversity program” is a formal plan, voluntarily adopted by private employers, that aims to increase diversity in the workplace for members of historically underrepresented groups, including women and people of color. These programs may apply to various employment practices, including hiring, training, retaining, and promoting. Generally, federal law prohibits employers from discriminating based on race and gender. 42 U.S.C. § 2000e–2(a); 42 U.S.C. § 2000e–2(m). But federal law also recognizes that voluntary affirmative action for private employers may be appropriate under certain circumstances. See 29 C.F.R. § 1608.3. More specifically, SCOTUS has held that “race can be considered for purposes of hiring and promotion of women and minorities when such affirmative action is justified by the existence of a manifest imbalance.” Rudebusch v. Hughes, 313 F.3d 506, 520‐524 (9th Cir. 2002) (citing Johnson v. Transp. Agency, 480 U.S. 616, 631 (1987); see also Local No. 93. Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 516 (1985) (“Title VII permits employers and unions voluntarily to make use of reasonable race‐conscious affirmative action”). Under Title VII, the validity of a voluntary diversity program is determined based on: (1) whether there was “manifest imbalance”; (2) whether remedial action “unnecessarily trammeled” rights of nonpreferred groups or created an absolute bar to advancement; and (3) whether remedial action was designed to do more than simply attain balance. Rudebusch, 313 F.3d at 520‐524 (evaluating a challenge to university’s equity pay adjustments to certain minority and female professors) (citing Johnson, 480 U.S. at 637‐39); see also 29 C.F.R. § 1608.3 (establishing circumstances under which voluntary affirmative action is appropriate).