On June 29, the U.S. Supreme Court held that admissions policies at Harvard University and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by using race as a consideration.

As the Court noted, discrimination that violates the Equal Protection Clause committed by an institution that accepts federal funds also violates Title VI of the Civil Rights Act of 1964, a provision that closely parallels Title VII of that Act.

These are not employment cases, but employers subject to Title VII may be subject to the fallout if they use race as a factor in making employment decisions, including hiring, promotion, and termination. This could be the case even if race or ethnicity are considered as part of the employers’ diversity, equity, and inclusion efforts.

The disputes

In Students for Fair Admissions v. President & Fellows of Harvard and Students for Fair Admissions v. University of North Carolina, Harvard and UNC both conceded that they used race as one factor among many in their admissions processes and argued that the polices promoted their educational missions and efforts at achieving diverse student bodies, as well as important benefits that flow from diversity. The Court noted that the use of race detrimentally affected the admissions prospects of applicants of other racial groups, notably in both cases, Asian applicants. The Biden Administration supported the universities, arguing that educational institutions have a compelling interest in creating diverse student bodies.

Harvard prevailed before a federal court in Massachusetts in 2018, and then prevailed again on appeal to the U.S. Court of Appeals for the First Circuit in 2020. UNC also won in a federal court in North Carolina, and its case went directly to the U.S. Supreme Court without an intermediate appeal because of its parallels with the Harvard case.

Each of the cases has been a magnet for long-running legal and political controversy. The plaintiff in each, Students for Fair Admissions, was led by its president, legal-political activist Edward Blum, who for many years has sought to have race-based admissions policies struck down, arguing that such policies are racially discriminatory.

The Supreme Court holding

The Supreme Court ruled 6-3 in favor of the SFFA. Chief Justice John Roberts wrote for the majority and was joined by Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas. Justice Sonia Sotomayor wrote the primary dissenting opinion, joined by Justices Ketanji Jackson and Elena Kagan. (Justice Jackson recused herself from the Harvard case because she had served on that institution’s Board of Trustees.)

According to the majority, the use of race – even if for “benign” purposes – is contrary to the Constitution’s guarantee of Equal Protection under the laws, which prohibits distinctions based on race or color. Chief Justice Roberts wrote, “Eliminating racial discrimination means eliminating all of it.” Elsewhere, he wrote,

Many universities have for too long wrongly concluded that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned, but the color of their skin…This nation's constitutional history does not tolerate that choice.

The Court concluded that the race-based admissions policies did not survive the “strict scrutiny” necessary for valid exceptions to equal protection under the law. The holding was based on three essential findings:

  • The interests espoused – such as training future leaders and valuing diverse perspectives – could not be measured and therefore were not subject to meaningful judicial review.
  • The admissions process did not provide any connection between the use of race and the intended goals because racial categories are overbroad, arbitrary, undefined, and underinclusive. As examples, the Court cited the overbroad and vague categories of “Asian,” which encompasses East as well as South Asians; and “Hispanic.”
  • The use of race in the admissions process, although a positive for some, can also be a negative, because it results in stereotypes and, in the “zero-sum” game of college admissions, necessarily has a negative impact on non-favored races.

Chief Justice Roberts provided some guidance regarding the bounds of policies that educational institutions may use to advance diversity goals, writing, “[N]othing prohibits universities from considering an applicant's discussion of how race affected the applicant's life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

The decision marks a departure from the line of cases beginning with the 1978 decision in Regents of University of California v. Bakke, where the Court indicated that the use of race was allowed in governmentally-tied university admissions policies as long as its use was as a narrowly tailored “plus factor” and not a quota system.

What does this mean for employers?

All federal employment laws prohibit the use of race in making employment decisions (except in very limited circumstances). This includes 42 U.S.C. Section 1981, Title VII of the Civil Rights Act, and Executive Order 11246. Executive Order 11246 requires that federal contractors take “affirmative action” to recruit and employ “without regard to . . . race, color, religion, sex, sexual orientation, gender identity, or national origin.” The regulations implementing the Executive Order provide as follows:

In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex, sexual orientation, gender identity, or national origin.

Thus, the Supreme Court decision is not likely to have a direct impact on the employment practices of many employers.

Downplaying the impact of the decision on employment practices, Charlotte A. Burrows, Chair of the Equal Employment Opportunity Commission, released a statement about the Supreme Court decision stating, in part, that the decision “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.”

Chair Burrows’ statement does not carry legal weight, so employers should review their policies and procedures to ensure that their employment decisions – including those related to Diversity, Equity, and Inclusion programs – do not use race (or any other protected characteristic) as a factor in determining terms and conditions of employment.

Employers may continue to focus DEI efforts on recruiting and maintaining diverse candidate pools from which to make neutral, non-discriminatory selections. Although some have expressed concern that the Court’s decision could result in fewer applications from qualified minority applicants, employers may consider other options for ensuring diverse candidate pools by promoting alternative learning and educational pathways, and by eliminating unnecessary or questionable educational requirements.

As a result of the Court’s decision, we strongly recommend that employers review their policies and DEI practices for legal compliance and proactively make adjustments where necessary. Most importantly, employers should focus on ensuring that policies are fair, equitable, and lawful, and that decisionmakers in the organization are trained regarding the factors that may and may not be considered in making employment decisions.

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