Supreme Court Significantly Restricts Affirmative Action in Higher Education – Employers Take Note

The Supreme Court delivered its highly anticipated consolidated decision yesterday in the two affirmative action cases on its docket, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (collectively, the “SFFA” cases). At issue in the SFFA cases is whether Harvard and the University of North Carolina (“UNC”) violate the Equal Protection Clause of the Fourteenth Amendment (and, in turn, Title VI of the Civil Rights Act of 1964) in their consideration of race in their admissions processes. In answering this question in the affirmative, the Court’s majority opinion significantly restricts – and, some would argue, eliminates – affirmative action programs in higher education.

Chief Justice Roberts authored the majority opinion, which Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett joined. In its discussion of the merits, the opinion begins with a history of the Equal Protection Clause, including the clause’s history in the Court, and, among other things, quotes from the plurality opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 289-90 (1978), stating that “‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.’” With this context, the majority determined that Harvard’s and UNC’s admissions processes violate the strict scrutiny standard articulated in Grutter v. Bollinger, 539 U.S. 306 (2003), because they: (i) “lack sufficiently focused and measurable objectives warranting the use of race,” (ii) involve racial stereotyping, (iii) use race in a negative way, and (iv) do not have “a logical end point.” As our colleague Stuart Gerson notes in his commentary on the decision, Chief Justice Roberts relied primarily on these final two elements.

The majority’s opinion restricts only the use of race in higher education. It does not apply to characteristics that the law does not protect, such as socioeconomic level, geographic location, athletic ability, or legacy status. In addition, Chief Justice Roberts writes that the majority’s opinion does not prohibit universities from “considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The Court, however, cautions that schools may not simply use essays or “other means” to circumvent the Court’s holding. What factors or means the Court might consider unlawful proxies for race is left unexplained.

Lengthy concurring and dissenting opinions were issued as well: Justice Thomas, Justice Gorsuch (with Justice Thomas joining), and Justice Kavanaugh each wrote concurrences; Justice Sotomayor wrote a dissent that Justices Kagan and Jackson joined (although Justice Jackson only joined with respect to the UNC case, having recused herself from the Harvard case); and Justice Jackson wrote a dissent with respect to the UNC case that Justices Sotomayor and Kagan joined.

What the decision ultimately means for employers remains to be seen. Employers have a long-standing obligation to make employment decisions based on merit without regard to race or any other protected characteristic. Moreover, in a statement released yesterday, EEOC Chair Charlotte A. Burrows recognized that “businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring” and that “[d]iversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers” and confirmed that “[i]t 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.” 

Given the significant public interest regarding affirmative action and considerations of race that the SFFA cases have garnered, it is especially important for employers to remain cognizant of the applicable legal framework and guidance, as, at a minimum, they might face inquiries from employees and consumers regarding implications for their workplace and organization.  Employers maintaining or implementing their own diversity, equity, and inclusion initiatives should stay apprised regarding developments in this area and seek counsel where questions arise.