On June 29, 2023, the Supreme Court effectively overturned long-standing affirmative action precedent and held that race-conscious college admissions programs violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 19641 . While the decision was limited to the use of race in college admissions programs, the Court’s ruling is certain to have implications for employers’ recruitment practices and diversity, equity, and inclusion (DEI) programs. Indeed, Justice Kagan acknowledged the potential impact of the case on the workplace during oral arguments. As such, the decision creates a framework for challenging race-based recruiting practices and DEI initiatives used by private employers. This article summarizes the decision and offers employers important considerations for modifying recruitment and DEI programs.
Applicability of Students for Fair Admissions to Private Employers
It is important to note at the outset that Students for Fair Admissions does not apply to most private employers. Rather, the case was brought under the Equal Protection Clause of the 14th Amendment (which applies to public school systems as part of the state government) and Title VI (which applies to programs that receive federal financial assistance). In contrast, private employers are governed by Title VII and other federal and state laws that prohibit discrimination based on protected characteristics. As such, the Court’s ruling does not have an immediate impact on private entities. However, the language used in the case creates an avenue for challenging race-based employment practices based on other laws. For instance, the Court reasoned that “[e]liminating racial discrimination means eliminating all of it[.]” Therefore, it is recommended that employers begin to examine their recruitment practices and DEI initiatives to avoid future litigation.
The Decision
As we explained in a previous article, prior to Students for Fair Admissions, it was permissible to consider race in addition to other factors as part of a holistic admissions process2 . However, the Supreme Court invalidated this approach in its June 29 decision, finding that: (1) there is no measurable standard for the stated governmental interest of student diversity; (2) affirmative action does not comply with the “twin commands” of the Equal Protection Clause (i.e. that race can never be used as a negative or a stereotype); and (3) affirmative action does not have a “logical end point.”
In its decision, the Court first reasoned that the compelling interests proffered by the universities to justify the use of race in admissions are not easily measured, and therefore, not well-suited for judicial review. While the Court noted that the stated interests of “better educating its students through diversity” and “promoting the robust exchange of ideas” were commendable goals, they are immeasurable – meaning that courts were unable to coherently apply the strict scrutiny standard mandated under the Equal Protection Clause .
Second, the Court reasoned that the use of race in the admissions processes violates the “twin commands” of the Equal Protection Clause that race cannot be used as a negative or as a stereotype. The Court noted that using race as the determinative factor in some admissions decisions led to a decrease in admitted Asian-American students, making it a negative. Additionally, the Court noted that race-conscious admissions processes perpetuated stereotypes by assuming that people of the same race share similar views. The Court reasoned that such uses of race are contrary to the “core purpose” of the Fourteenth Amendment.
Finally, the Court found that the use of race in college admissions lacked a “logical end point” because the universities suggested that such methods would continue indefinitely until they achieved “meaningful representation and meaningful diversity.” The Court found this explanation to suggest that the universities have no intention to end race-conscious admissions in the near future, a position the Court found inconsistent with its prior opinions, which envisioned that affirmative action would be only used as a remedial measure and “sunset” after a period of time.
Suggestions for Employers
Though these cases involved collegiate admissions, the Court’s holding that race cannot be used in admissions decisions will likely impact how employers use race in designing recruitment and DEI programs. For instance, it is possible that the decision could lead to an increase in reverse discrimination claims by employees claiming to be disadvantaged by such initiatives.
Notwithstanding this, it is important for employers to note that the Court’s opinion does not mean that employers cannot or should not have DEI initiatives as the Court acknowledged such initiatives are laudable goals. Rather, the decision challenges employers to craft their efforts more critically, without resorting to race-based stereotypes of what constitutes diversity. This means that employers should think critically about what diversity means to their organization and how such an understanding of diversity can be achieved through lawful means—based on merit, rather than race, and reflecting real diversity. Stated differently, employers should have legitimate criteria and goals for the perspectives they seek in their employees instead of basing their DEI initiatives and goals on stereotypes and racial quotas. This will require employers to think expansively about how to promote diversity and inclusiveness in their hiring and employment practices and explore potential new or expanded ways to achieve employee diversity. For example, employers may opt to cast a wider net when recruiting by advertising job openings in magazines and publications designed for underrepresented communities; recruit candidates from different socioeconomic backgrounds; consider what success means within the employer’s business; and/or institute job training programs that provide potential job candidates with the opportunity to gain skills required for the job.
Additionally, employers should continue to train employees on unconscious bias to promote inclusiveness. Employers should also review their employment policies, hiring practices, and other marketing materials to ensure that they do not reflect implicit bias and do not illegally impact employees based on protected characteristics. Moreover, efforts to mentor employees, provide affinity groups, or other initiatives designed to promote a greater representation of viewpoints in decision-making need not be scrapped.
In short, there is not an easily prescribed list of steps that can or should be taken at this time. Rather, the Court’s decision suggests the need for critical introspection, without reliance on stereotypes in achieving a facially diverse position.
The authors would like to thank Elijah Conley, summer associate, for his important contribution in preparing this client alert.
[1] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, 2023 WL 4239254 (U.S. June 29, 2023).
[2] See also Grutter v. Bollinger, 539 U.S. 306 (2003).
