The Supreme Court issued a major decision at the end of June when it outlawed affirmative action for colleges in Students for Fair Admissions v. President & Fellows of Harvard College (“SFFA”). The Court based its decision both on the Equal Protection Clause of the Fourteenth Amendment to the Constitution and on Title VI of the Civil Rights Act of 1964.
But the consequences of the Court’s decision—particularly its holding as to Title VI—may not end on college campuses. On July 13, 2023, the Attorneys General of thirteen states, including Missouri, South Carolina, and Tennessee, sent a letter to Fortune 100 CEOs arguing that the SFFA decision would lead to future legal action over the companies’ Diversity, Equity, and Inclusion (DEI) practices. The crux of their argument is that Title VII of the Civil Rights Act of 1964, and many state laws, were modeled after Title VI and should be interpreted to prohibit racial policies similar to those at issue in SFFA.
The Attorneys General specifically targeted “racial quotas” in hiring at Fortune 100 companies, calling them just as “invidious” as those struck down in SFFA. For example, the letter cited Goldman Sachs, Apple, and other large American companies’ recent commitment to hiring more racially diverse individuals as illegal under state and federal law. The letter also cited, as illegal, these companies’ preferences for contracting with a certain percentage of minority-owned companies.
The letter threatened enforcement actions against those companies that did not end their DEI efforts.
North Carolina Attorney General Josh Stein did not join the letter, likely because North Carolina does not have an anti-discrimination statute similar to Title VII; however, as counter-intuitive as it might seem, should the EEOC adopt the Supreme Court’s reasoning, North Carolina employers could see challenges to DEI practices from that agency. Time will tell.
The SFFA case may have come to an end, but its effect on racial discrimination policy in America is just beginning.
