Background

In ten days, on October 31, 2022, the United States Supreme Court will hear oral arguments in two very important affirmative action education cases. In Students for Fair Admissions v. Harvard College (Harvard), the plaintiffs argue that Harvard used race at multiple stages of the admission process in a manner that violates applicable law and disadvantages Asian applicants. In Students for Fair Admissions v. University of North Carolina (UNC), the plaintiffs argue that UNC utilized race in admissions in a manner that was not narrowly tailored enough to be legal and as a result, it disadvantages Asian applicants. More specifically, the plaintiffs in these cases claim that the admissions policies of these universities violate the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.  

In ruling on these cases, the Supreme Court will likely consider whether to overrule the court’s 2003 decision in Grutter v. Bollinger, where the Supreme Court held that the University of Michigan could consider race, in a narrowly tailored manner, in its undergraduate admissions process as part of its diversity efforts and goal of obtaining a more diverse student body.

While the Harvard and UNC cases are related, these cases will be argued separately to allow Justice Ketanji Brown Jackson to participate in the UNC case, as she recused herself in the Harvard case due to her prior service on the Harvard Board of Overseers.  

Employers Who Participate in Diversity Initiatives Should Pay Close Attention

Many private California employers implement their own diversity programs and initiatives where race, gender, disability, and/or other protected characteristics are considered as secondary factors as part of the hiring or promotional decision-making process. Other employers participate in similar diversity recruiting initiatives that are sponsored by outside organizations and are used to help promote the hiring of certain underrepresented groups.  

While it is unlikely (but not impossible) that the decisions in Harvard and UNC will be expressly extended to Title VII and the employment context, most feel that the Supreme Court, given its current makeup, is very likely to overrule Grutter. In doing so, and articulating a new standard, the Supreme Court certainly may hold that race cannot play any role in the college admissions process and that any consideration of race violates Title VI and the Equal Protection Clause.  

If the Supreme Court goes that far in its decisions, it is likely that employee lawyers representing white employment applicants/employees and other groups who may contend that they were disadvantaged by diversity efforts, will attempt to use these decisions to challenge the employer’s diversity efforts. More conservative trial court judges who believe that employer decisions should be completely race/gender neutral and take issues with employer-based diversity programs may look for language from the Supreme Court’s decisions in Harvard and UNC to latch onto in order to give wind to these challenges. Therefore, there is a very reasonable scenario under which the Supreme Court’s decisions in Harvard and UNC may result in much stricter scrutiny of employer-based diversity efforts and make it more difficult for employers who wish to engage in diversity efforts to do so successfully.    

While it remains to be seen how the Court will rule on these cases, employers who utilize diversity initiatives should follow the developments. To listen to the oral argument, click here.