Affirmative Action Up for Debate at the Supreme Court

As we wrote about in our previous blog post on affirmative action, two ongoing Supreme Court cases on affirmative action in college admissions are predicted to have wider impacts that go beyond the realm of education, affecting how employers are able to seek out and hire diverse candidates.

The two cases, Students for Fair Admissions, Inc. v. University of North Carolina (SFFA v. UNC), and Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA v. Harvard), feature the same plaintiff. Students for Fair Admissions, Inc. is an organization run by Edward Bloom, a conservative legal activist known for bringing a slew of lawsuits to court challenging race-conscious policies in education. This is not Bloom’s first lawsuit challenging the use of affirmative action in college admissions, you may know him from the Fisher v. University of Texas cases (2013 and 2016). In this lawsuit,the Supreme Court upheld the University of Texas’ race-conscious admissions policy against a challenge by a white plaintiff, Abigail Fisher, who claimed that she had been rejected due to her race.

Since the Fisher cases, however, the ideological make-up of the court has shifted, prompting speculation that the conservative-leaning court may rule differently on the legal permissibility of race-conscious admissions.

The first pending Supreme Court case, SFFA v. UNC, alleges that the race-conscious admissions process used by UNC violates the Equal Protection Clause of the Fourteenth Amendment, as well as Title VI of the Civil Rights Act, which prohibits racial discrimination by institutions that receive federal funding. The second pending case, SFFA v. Harvard, alleges that Harvard discriminates against Asian American applicants in violation of Title VI (the Equal Protection Clause of the Fourteenth Amendment does not apply to Harvard since it is a private institution). Both cases present the possibility that the Court will rule in favor of the plaintiff and overturn its earlier ruling in Grutter v. Bollinger (2003), which permits the use of race-conscious admissions by public and private universities. 

Narrow Tailoring and Race-Neutral Alternatives

In its 2003 ruling in Grutter, the Supreme Court held that colleges implementing affirmative action policies must pass the “strict scrutiny” test: they may consider race only as one potential plus factor among many characteristics, and they must be able to show that other race-neutral policy alternatives do not achieve the same diversity goals. Racial quotas and “racial balancing” are not permitted, but programs that are “narrowly tailored” in their consideration of race are constitutional, based on the idea that diversity itself is a “compelling state interest” (of which racial diversity is only one part). In an October 31, 2022 hearing in the SFFA v. Harvard case, SFFA pressed its assertion that despite district court rulings to the contrary, Harvard could achieve diversity through race-neutral means such as eliminating its legacy program and admitting more students from lower socioeconomic backgrounds. However, both conservative and liberal justices battled over deeper questions: whether American society has moved past the point of needing to explicitly account for race, and whether any consideration of race in admissions should be ruled unconstitutional.

Harvard maintained that race-neutral alternatives could not achieve the same level of diversity as its current admissions process, in which race is considered as one factor among many, without making sacrifices on “every dimension important to Harvard’s admissions process”, including the SAT scores of admitted students. (Oct. 31, 2022 hearings for SFFA v. Harvard, p. 49, oral argument reference to district court opinion) 

But several justices cited the broad language of the Constitution’s Equal Protection Clause as a challenge to any use of race in admissions: they referenced the pernicious history of the use of racial categories and called race a “suspect classification,” subject to a higher bar of scrutiny than other categories such as socioeconomic status. Justices Barrett, Kavanaugh, and Gorsuch repeatedly referenced a comment made by Justice O’Connor in Grutter: 

“The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

(Grutter majority opinion, p. 343) Focusing on this expectation of social progress 25 years from the Grutter case, these justices were highlighting, in Justice Kavanaugh’s words, the “importance of race-conscious decision-making being time-limited and temporary” while noting that the 25-year limit is well on its way to elapsing. (Oct. 31, 2022 hearings for SFFA v. UNC, p. 55-56) This idea that relative racial equality in the United States has been largely achieved since 2003 may strike many as simply unbelievable. The court’s emphasis on the concept of an eventual sunset on affirmative action suggests that if it isn’t barred in these two cases, it is likely to be overturned in a future case.  

Justice Jackson, the most recent appointee to the Supreme Court, offered a counterargument to this application of the Equal Protection Clause, noting that it “seems to me to have the potential of causing more of an equal protection problem than it’s actually solving.” (Oct. 31, 2022 hearings for SFFA v. UNC, p. 64) Justice Jackson proposed a comparison of two hypothetical applicants to UNC, both of whom come from families that have lived in North Carolina since before the Civil War. The first applicant writes in his application essay that he would be the fifth generation in his family to attend UNC and writes that he would like to honor his family’s legacy by attending the university. The second applicant writes that he comes from a family that was originally enslaved and never had a chance to attend UNC. Now, as an African American, he would like to honor his family legacy by attending UNC.

Justice Jackson, in presenting this comparison of two hypothetical applicants, argues that under an admissions process that allows no consideration of race, the first applicant’s background would permitted to be considered as part of his application, while the second applicant’s background, since it is bound up with his race and the race of his ancestors, would not. As a result, Justice Jackson argued, it excludes the second applicant’s ability to tell his story, saying: “why is telling him no not an equal protection violation”?  (Oct. 31, 2022 hearings for SFFA v. UNC, p. 65-66)

Potential Impacts on Hiring and Employment

The potential Supreme Court holding that race-conscious admissions violate Title VI and the Equal Protection Clause has implications that reach far beyond the realm of college admissions into realms such as employment. This would limit the ability of employers to seek out and hire diverse workforces, restricting the reach of corporate “diversity, equity and inclusion” (DEI) initiatives and programs. 

These implications were raised explicitly by Justice Elena Kagan during the October 31, 2022 hearing for SFFA v. Harvard, when she asked whether race would be a permissible factor to consider in the hiring of law clerks. SFFA stated that, while it is an admirable goal to have a diverse set of law clerks, he didn’t think it would be permissible to be “putting a thumb on the scale” to favor or disfavor applicants based on their race.

Aside from the fact that the racial makeup of elite colleges and universities directly affects the racial makeup of the applicant pools that various industries draw from, especially for employers that use these schools as “pipelines” from which to draw applicants – a point raised by U.S. Solicitor General Prelogar in support of the universities’ position in the oral arguments for both cases – a ruling on the permissibility of race-conscious college admissions has direct bearing on the use of race-conscious recruiting and hiring by employers. 

These parallels are highlighted by the similarities commentators have noted between the language of Title VI of the Civil Rights Act, governing federally funded entities including universities, and Title VII, governing private and public employers. A ruling holding that Title VI does not permit affirmative action in college admissions will open the door for legal challenges to race-conscious employment policies and practices on analogous grounds. If SFFA’s arguments against race-conscious admissions prevail, “diversity, equity and inclusion” programs could be ruled unconstitutional in future lawsuits, simply because they permit an employer to consider race in their policy decisions. In Justice Kagan’s example, intentionally recruiting judicial law clerks from diverse racial backgrounds could be unlawful. 

The Future of Affirmative Action in Employment 

The UNC and Harvard affirmative action cases will be decided by June 2023. If the court strikes down affirmative action on a constitutional basis, employers may need to review their hiring processes to make sure there is not only no racial quota, but no point system or even ‘plus’ factor associated with race. It would likely still be legal to conduct strategic outreach into underrepresented communities (or historically black colleges, for example) to solicit applications.

Because the Equal Protection Clause applies directly to public institutions, not private employers, the impacts of the Supreme Court’s upcoming rulings in the Harvard and UNC cases are likely to be felt first in public employment and in government contractor companies.

For example, the Office of Federal Contract Compliance Programs (OFCCP) has preemptively tried to head off questions about how the Office enforces the affirmative action obligations that already exist in companies’ federal contracts. Federal contractors are subject to very detailed affirmative action requirements that mandate that they conduct numerical analyses of their workplaces and set goals related to hiring and workforce representation. In anticipation of the Supreme Court ruling on the education cases, the OFCCP has published a comment in the frequently asked questions posted on its website that distances its programs from those in universities.  The OFCCP states, “the obligations it enforces are wholly distinct from the concept of affirmative action as implemented by some post-secondary educational institutions in their admissions processes. In contrast to the affirmative action implemented by many post-secondary institutions, OFCCP does not permit the use of race to be weighed as one factor among many in an individual’s application when rendering hiring, employment, or personnel decisions, as racial preferences of any kind are prohibited under the authorities administered by OFCCP.”   See https://www.dol.gov/agencies/ofccp/faqs/AAFAQs#Q6.   

In short, OFCCP’s statement makes clear that its legal mandates already strictly forbid quotas and do not permit federal contractors to use a protected category such as race as a factor in making employment decisions.

The Supreme Court’s decision in the Harvard case may have implications for how race can be considered in private sector employment decisions. The Harvard case grapples with the reach of Title VI, which prohibits discrimination in education. Because the language of Title VI is similar to the language of Title VII, which covers employment discrimination, courts in Title VII cases may have to address the Harvard case one way or the other. It thus remains to be seen whether Title VII employment standards will be impacted by the education cases.

In a future where race-conscious employment decisions are ruled unconstitutional, one question is whether any sort of diversity language within company policy that could potentially impact any protected class differently than others could add fodder to discrimination claims. Given this additional layer of pressure, companies may mute practices involving explicit acknowledgment of protected classes or adjust their practices to make employment decision-making less transparent.  Even though there is no concrete sign that the Supreme Court is eager to wade into reviewing workplace diversity policies, employers are sure to be worried about legal exposure from explicit goals to increase the representation of minorities and women in their workplaces.  

It will be a long time before employees who assert discrimination claims begin to see the effects of any Supreme Court ruling regarding affirmative action in higher education.

 Valerian Law will continue to monitor these Supreme Court cases and others that impact the rights of employees and consumers.