Late last month, the Supreme Court delivered a significant ruling on affirmative action in the jointly decided cases Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (collectively, the SFFA cases). The Chief Justice, writing for the majority, held that the universities’ use of race in their admissions process violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

The majority first provided a historical overview of the Equal Protection Clause, taking the reader from its post-Civil War origins to the Court’s “fail[ure] to live up to the Clause’s core commitments” in Plessy v. Ferguson and the end of legal segregation in the wake of Brown v. Board of Education.[1] The Court noted that the invalidity of race-based state action expanded beyond education to “other areas of life,” too, citing decisions invalidating segregation in schools, juries, parks, golf courses, neighborhoods, businesses, buses, and trains.[2] In light of this history, the Court concluded: “Eliminating racial discrimination means eliminating all of it.”[3]

As for Harvard and UNC’s admissions processes, the majority held that they fail to survive strict scrutiny because “[b]oth programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[4] The majority further warned that “an effort to alleviate the effects of societal discrimination is not a compelling interest” to justify race-based action.[5] This view could have far-reaching implications beyond higher education.

The majority opinion elicited multiple dissents. Justice Sotomayor, for example, cautioned that this “decision further entrenches racial inequality by making these pipelines to leadership roles less diverse.”[6] And Justice Jackson noted that “[t]he only way out of this morass—for all of us—is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans.”[7]

Although the opinion’s impact on private employers remains to be determined, the Court’s broad endorsement of race neutrality may ultimately affect corporate efforts in Diversity, Equity, and Inclusion (DEI). Justice Gorsuch, in his concurrence, discussed the potential consequences in the workplace, noting the similarities between Title VI and Title VII, which utilize “the same terms” and embody “the same meaning.”[8] Specifically, he observed that both Title VI and Title VII establish a categorical rule of individual equality, irrespective of race.[9] Following the decision, the Equal Employment Opportunity Commission issued a press release clarifying that “the decision . . . does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”[10] 

That said, challenges to DEI initiatives continue to pose a concern for companies,[11] and the SFFA decision may increase the number of challenges. The SFFA decision has brought new attention to race-based decision-making, underscoring the importance for employers to stay informed about this evolving legal landscape. Employers who maintain or introduce their own DEI initiatives should seek guidance when questions arise.

[1] Plessy, 163 U.S. 537 (1896); Brown, 349 US 294 (1955).

[2] Brown, 349 U.S. 294 (schools); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) (education); Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory jury strikes); Hernandez v. Texas, 347 US 475 (1954) (composition of juries); New Orleans City Park Improvement Assn. v. Detiege, 358 US 54 (1958) (public parks); Mayor and City Council of Baltimore v. Dawson, 350 US 877 (1955) (beaches and bathhouses); Holmes v. Atlanta, 350 US 879 (1955) (golf courses); Shelley v. Kraemer, 334 U.S. 1 (1948) (housing covenants); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (commercial property); Gayle v. Browder, 352 U.S. 903 (1956) (busing); and Bailey v. Patterson, 369 U.S. 31 (1962) (transportation facilities).

[3] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ___, *15 (2023).

[4] Id. at *39.

[5] Id. at *35 (citing Shaw v. Hunt, 517 U.S. 899 (1996)). 

[6] Id. at *66 (Sotomayor, J., dissenting).

[7] Id. at *26 (Jackson, J., dissenting).

[8] Id. at *4 (Gorsuch, J., concurring).

[9] Id. (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 416, n.19 (1978) (opinion concurring in judgment in part and dissenting in part)).

[10] Statement from EEOC Chair Charlotte A. Burrows on Supreme Court Ruling on College Affirmative Action Programs, EEOC (June 29, 2023).

[11] See, e.g., Nicholas R. Barry, Investigation Request: AB InBev Letter to David Davis and Andrea Baran of the U.S. Equal Employment Opportunity Commission, Am. First Legal Found. (April 17, 2023).