The U.S. Supreme Court is expected to rule soon on two challenges to the use of affirmative action in college admissions, but their reach may extend well beyond the university context. The cases before the Supreme Court involve challenges to the race-conscious admissions policies of the University of North Carolina (under the Fourteenth Amendment) and Harvard University (under Title VI of the Civil Rights Act of 1964). A separate provision of the Civil Rights Act, Title VII, governs workplace discrimination and is therefore not directly before the Court. However, we have heard from some clients that they are concerned that the Supreme Court’s admissions decisions will have an impact in the employment context, too. Hogan Lovells has created a task force on these issues to advise clients on the implications of these anticipated decisions for corporate diversity programs.
Even if the Supreme Court ends race-conscious admissions for universities, that decision will not necessarily require the end of race-conscious employment policies for private companies because different legal standards apply in these different contexts. To withstand scrutiny under Title VII, race-conscious affirmative action plans are largely supported by a remedial justification.1 By contrast, the admissions policies currently before the Supreme Court are based solely on the “educational benefits of diversity.”2 The University of North Carolina expressly disclaimed a remedial justification for its policy3 and Harvard never asserted one. Because the admissions cases do not rely on a remedial theory, whereas the Title VII framework requires a remedial justification, the Supreme Court’s decisions in the admissions context may not result in any automatic changes in workplace affirmative action plans under Title VII. Indeed, the challengers to the Harvard admissions policy conceded that the “remedial exception is still good law.”4
Although the differing legal standards applicable to Title VII claims suggests that the Supreme Court’s decisions in the admissions cases will not require immediate changes in the workplace context, there is some risk that lower courts will refer to the admissions cases to review workplace plans with greater scepticism. That is particularly true because the Supreme Court has not “define[d] in detail the demarcation between permissible and impermissible affirmative action plans.”5 Additionally, there is some doctrinal overlap between the admissions cases and Title VII workplace cases, including on issues such as durational limits for affirmative action plans, and deference to the decisionmaker. If the Supreme Court endorses stronger time limits in the admissions cases and decreased (or no) deference to school officials, courts may later apply stricter time limits and provide less deference to employers as well.
Again, it’s too early to know what the Supreme Court will do in these two cases. But we know that you, like other responsible business leaders, value diversity in your workforce. Because of that, you may want to explore your options related to ensuring that your existing programs both comply with the settled legal standards in the Title VII context, and anticipate any changes that the Supreme Court’s decisions in the admissions cases will bring about. We can help you work through these issues. Our team at Hogan Lovells has been working in this space for years, and have the knowledge and experience anticipating the Supreme Court’s next moves. Since leaving the government, Hogan Lovells Supreme Court and Appellate practice group co-head and partner Neal Katyal has developed a practice advising businesses and educational institutions both large and small regarding preference and diversity issues.
References
1 See United Steelworkers v. Weber, 443 U.S. 193, 208 (1979).
2 See Grutter v. Bollinger, 539 U.S. 306, 319 (2003).
3 Oral Arg. Tr. p. 90.
4 Oral Arg. Tr. p. 20.
5 Weber, 443 U.S. at 208.
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