SCOTUS Ends Race Conscious Affirmative Action Admission Programs

Today, the United States Supreme Court issued an opinion, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, deciding two companion cases challenging race-based admissions practices at Harvard College and the University of North Carolina. As many predicted, the Court held that using race as a factor in public college admissions violates the Equal Protection Clause of the Fourteenth Amendment and, when carried out by institutions receiving federal funding, violates Title VI of the Civil Rights Act of 1964.

Today’s decision upends the Court’s prior view that permitted race-conscious admissions when they serve a compelling government interest: a practice that was first approved by the Court forty-five years ago.

The Court’s Rationale
Anticipating the ripple effect of today’s decision across corporate America, more than eighty corporations and business groups submitted briefs supporting the universities’ position.

Employers should take note of the Court’s rationales for ending race-conscious programs at colleges and universities. The same rationales may be used to support challenges to common workplace practices. According to Justice Robert’s majority opinion,

• The programmatic goals of promoting a robust marketplace of ideas and acquiring new knowledge based on diverse outlooks are too incoherent and elusive to survive legal scrutiny.
  
  
• The race-conscious admissions processes at Harvard and UNC rely on “overbroad,” “arbitrary,” and “underinclusive” racial categories.
  
  
• “College admissions are zero-sum,” and, as such, treating race as a “plus” for some applicants necessarily involves treating race as a “negative” for others.
  
  
• Race-conscious admissions programs lack a “logical endpoint.”
  
  

Today’s decision unquestionably closed a door previously open to students of color and the institutions that sought to recruit and educate them. Yet, the Court may have left open a window. By concluding with the explicit instruction that the opinion does not “prohibit[] universities from considering an applicant’s discussion of how race affected his or her life,” the majority opinion contemplates race may continue to play some role, however ill-defined, in the admissions process. Indeed, quoting this language, the Biden Administration immediately responded to the Court’s decision by calling on the Department of Education to analyze practices to increase diversity and inclusivity within student populations. But in the interim, proponents of race-conscious admissions practices anticipate swift and severe implications for students of color, a corresponding decline in diversity within the workforce, and further exacerbation of socio-economic differences across racial groups.

What Actions Can Employers Take Now?
Today’s decision likely signals forthcoming challenges to employment policies that are arguably race-conscious. Employers should consider mitigating their risk of such challenges by:

• Examining recruitment, talent pool construction, succession plans, and other hiring and promotion practices to ensure the practices do not result in preferences based on race (or other impermissible factors) and as appropriate, changing or eliminating any preference.
  
  
• Inspecting diversity, equity, and inclusion programs and policies for any preferences based on race (or other impermissible factors) and, as appropriate, changing or eliminating any preference.
  
  
• Keeping abreast of changing state laws. Florida has already passed legislation restricting private employers’ use of mandatory training programs discussing some race-conscious topics and today’s decision may result in other states following suit.
  
  
• Reviewing any voluntary affirmative action plans to ensure they are legally compliant. The legality of these plans is subject to meeting strict criteria. Plans that may have passed muster in the past become less likely to survive legal scrutiny absent evidence of a continuing need for the plan.