United States: How The Supreme Court’s Opinion on Affirmative Action in College Admissions May Impact Employers’ Recruiting, Hiring, and DEI Programs

Considering race in college admissions is legally impermissible, according to the U.S. Supreme Court’s recent affirmative action decision. But what does this mean for employers?

The Court’s decision left more questions than answers. While the decision involved affirmative action in college admissions and not employment, the Court’s sweeping language already has been used to challenge employment decisions and even programs focused on promoting diversity, equity, and inclusion. Employers should remain vigilant.

The Challenged Admissions Processes

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College¹ involved challenges to the admissions processes at Harvard College (Harvard) and the University of North Carolina (UNC). Both institutions considered race in the admissions process to increase and maintain diversity on their college campuses. In their view, diverse student bodies brought varied perspectives and promoted innovation, creativity, and prepared future leaders to work in a pluralistic society. Relying on earlier Supreme Court precedent concluding that racially diverse student bodies present educational benefits, both institutions considered race in their admissions process. Neither used a quota system or used race to foreclose an individual from all consideration. Instead, both viewed their process as taking a holistic approach to college admissions.

A nonprofit organization, Students for Fair Admissions (SFFA) sued, arguing these admissions processes violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

The Supreme Court Decision

In a 6-3 majority opinion, the Court held that the admissions processes used by Harvard and UNC failed to pass constitutional muster for three reasons:

• The programs were not sufficiently measurable or “coherent.” The Court viewed the challenged admissions processes as “race-based.” Because of this, the processes could only continue if they withstood a “strict scrutiny” test. Under this test, racial classification may only be used to “further compelling government interests.” Even then, the use of race must be “narrowly tailored” or necessary, to achieve that interest, and must be sufficiently measurable to permit review. Harvard’s and UNC’s stated goals included educational benefits stemming from diverse perspectives, increased innovation, training future leaders, and preventing minority underrepresentation. The Court concluded that these stated goals for using race in the admissions processes failed to pass strict scrutiny. While “commendable,” the Court nevertheless rejected these goals as “not sufficiently coherent” or “measurable” to allow for judicial review. Further, the methods were imprecise and the Court was not convinced that considering race could improve education overall.
  
• The programs used race as a negative factor and stereotype. The Equal Protection Clause has been interpreted to prohibit using race as a negative or a stereotype. According to the majority opinion, race was a negative in the institutions’ admissions process because it led to fewer white and Asian-American students being admitted. Thus, giving a “plus” to an underrepresented race means giving a “negative” to those outside that race. The institutions urged that race was not a negative factor because it was only a small part of the admissions decisions. The Court was unmoved, reciting the institutions’ own arguments that the admitted classes’ demographics would change if race could not be considered at all. The programs also used race as a stereotype, the majority opined, because it assumed “that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” The Court found this was impermissible under the Equal Protection Clause and its past precedent.
  
• The programs had no clear endpoint without using quotas. Both Harvard and UNC explained that these admissions programs would have ended once they had reached the goal of meaningful representation and diversity on their campuses. Yet, the Court held, their explanation for how to determine when that goal was reached was problematic. Harvard, for example, measured demographics year over year, and when there was a drop within a specific group, it may have decided to give applications from that group additional attention. UNC tracked the demographics on campus to the demographics within the general population of North Carolina. The Court held both methods were essentially unconstitutional “racial balancing,” despite the institutions’ arguments to the contrary.

Having struck down these admissions programs, the majority opinion concluded with warnings and guidance. Institutions are free to consider an applicant’s discussion of how race affected their life, be it through discrimination or inspiration. Institutions cannot, however, use personal statements or other diversity factors as a smokescreen to consider race. Any discussion related to race must directly relate to a race-neutral characteristic, like courage, determination, or leadership abilities, according to the majority opinion.

While the majority opinion focused on the admissions process and not “affirmative action” in general, the separate concurrences penned by Justices Thomas and Gorsuch did not. Justice Thomas took aim at “affirmative action” programs, and even insinuated programs focused on equity are problematic. Justice Gorsuch observed that the statute at the heart of Students for Fair Admissions mirrors its neighboring statute, Title VII of the Civil Rights Act, which governs employers.

How the Decision Might Impact Employer Affirmative Action Programs

Although not directly impacted by the Supreme Court’s ruling, employers with affirmative action programs should take note. Under federal law, private employers can voluntarily establish remedial affirmative action programs under very limited circumstances.² Certain federal workforces and private contractors are required to establish affirmative action programs.³ Even under these programs, however, employers may not utilize blanket “plus factors,” quotas, or preferences.

Federal contractors likewise should keep a close eye on developing law as they maintain their existing affirmative action obligations under Executive Order 11246 and guidance from the Office of Federal Contractor Compliance Programs (OFCCP). In particular, some contractors must develop goals related to underrepresented groups. It is possible that such goals will be challenged in court as impermissible or illegal quotas.

Many states have laws concerning employment discrimination and affirmative action initiatives as well. For example, Washington,⁴ Oregon,⁵ and California⁶ all have laws that prohibit discrimination or preferential treatment based on protected characteristics. Affirmative action initiatives can be voluntarily undertaken by private employers in these states, subject to limitations. However, each state has unique requirements in other contexts that must be considered:

• Washington State: Affirmative action was banned for public employment and contracting in 1998 by Initiative 200 and accompanying Directive 98-01 issued by then-Governor Gary Locke. In April 2019, the Washington Legislature passed Initiative 1000, which ended the ban on affirmative action. Months later, Referendum 88 was passed, blocking Initiative 1000, leaving Directive 98-01 intact. However, in 2022, Governor Jay Inslee rescinded Directive 98-01, and instead provided new guidance. That guidance requires public employers to enact diversity, equity, and inclusion, anti-discrimination, and reasonable accommodation plans.⁷
  
• Oregon: State agencies are required to develop affirmative action plans, including bi-annual reports concerning government contracts awarded to minority businesses.⁸
  
• California: Since 1996, California has banned preferential treatment in affirmative action plans for public employment and contracting, as well as public schools and colleges.⁹

In addition to the above prohibitions and requirements, the framework for establishing a legally compliant affirmative action plan is highly complex and should be developed in consultation with legal counsel, especially for government employers and federal or state contractors.

How the Decision Might Impact Employer DEI Programs

Students for Fair Admissions involved an affirmative action program and not employer programs furthering diversity, equity, and inclusion, or “DEI” programs. DEI programs aim to foster and engage all qualified workers, regardless of background. Although some DEI programs may have an affirmative action component, these two concepts are not co-extensive. For these reasons, the Students for Fair Admissions decision should not impact an employer’s DEI efforts, as EEOC Chair Charlotte A. Burrows stated in a June 29 press release responding to the decision.

Nevertheless, in the short time since the Court decided Students for Fair Admissions, the decision has been relied upon several times to challenge DEI programs. For example, one U.S. Senator sent a letter warning law firms and companies that their DEI programs must comply with the new decision. Likewise, EEOC Commissioner Andrea Lucas warned organizations “to take a hard look” at their diversity programs and avoid making any “race-conscious employment actions.” Most recently, several law firms were sued for their DEI programs. And closer to our firm’s Northwest home, a former employee has sued the City of Seattle claiming, among other things, that the City maintains race-based affinity groups that violate the Fourteenth Amendment’s Equal Protection Clause. The federal court has allowed the lawsuit to proceed for now, relying on Students for Fair Admissions, and calling for further factual development. Diemart v. City of Seattle, Case No. 2:22-cv-1640 (W.D. Wash. August 28, 2023).

What Should Employers Do Now?

• Review your current affirmative action plans and practices. Employers with affirmative action plans should monitor any changes from federal authorities (such as OFCCP and EEOC) and state agencies. State and federal law concerning affirmative action plans in private and public employment is highly regulated and nuanced.
  
• Review your current DEI initiatives and training. Work with legal counsel to conduct a privileged review of your DEI plans, practices, and related training in light of Students for Fair Admissions and recent lawsuits. This review should include an analysis of specific programs, trainings, recruiting initiatives, data collection, and communications about your initiatives.
  
• Continue a commitment to fostering a welcoming, inclusive environment. Remember, DEI programs and affirmative action programs are not the same. Employers remain free to broaden their applicant pipelines to develop a diverse workforce, and value non-traditional paths, educational backgrounds, and applicants’ specific unique experiences. And Students for Fair Admissions allows consideration of how an applicant’s race contributed to their overall experience — either due to “discrimination” or “inspiration.” But, any consideration should be tied to job-related factors and should be race-neutral.
  
• Bolster EEO policies and trainings. Employers can increase diversity and representation through other means, including by adopting strong Equal Employment Opportunity policies, practices, and training. The trainings should focus on non-discrimination, anti-retaliation, anti-harassment, respectful workplace strategies, and fostering inclusion and belonging for all employees.
  
• Stay tuned for additional Court action. The Supreme Court has agreed to hear a Title VII employment case challenging a transfer to a position with the same rank, pay, and responsibilities. See Muldrow v. St. Louis.¹⁰ And the Court is weighing whether to accept another case challenging a paid suspension. See Davis v. Legal Services Alabama, Inc.¹¹ The Court is expected to address a circuit split on how to define actionable employer conduct under Title VII. A broad definition could be used to challenge DEI initiatives focused on assisting particular groups, even if the initiatives have no impact on pay, promotion, hiring, firing, or other “tangible” employment actions.
  
• Remain alert for new guidance from federal and state agencies. As we are already seeing, the Supreme Court’s ruling may lead to different interpretations or considerations for affirmative action plans and DEI initiatives in other contexts, including private and public employment.

Lane Powell’s team of labor and employment attorneys is here to help your organization comply with state and local laws and develop and implement the strategy that supports your business and your employees. For more information, contact Katheryn Bradley or Priya Vivian, or visit our firm's Labor, Employment, and Benefits page. Keep up-to-date by subscribing to Lane Powell’s Legal Updates and register for our upcoming seminar on October 6 in Seattle.

¹ No. 20-1199, 2023 WL 4239254 (U.S. June 29, 2023).

² 29 C.F.R. § 1608.4.

³ 41 C.F.R. § 60-1.4(1).

⁴ RCW § 49.60 et seq.

⁵ ORS § 659A et seq.

⁶ Cal. Gov. Code § 12900 et seq.

⁷ Executive Order 22-02.

⁸ ORS § 659A.012-.015.

⁹ Proposition 209 amended the California State Constitution.

¹⁰ U.S., No. 22-193, cert. granted 6/30/23.

¹¹ U.S., No. 22-231, cert. pending.