[author: Roselle Rogers]

On Thurs. June 29, 2023, the Supreme Court ruled that race-conscious admissions policies are unconstitutional and invoked the Equal Protection Clause of the 14th Amendment, stating that Harvard’s and UNC’s admissions programs violate the Equal Protection Clause.

“Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies without regard to any differences of race, of color, or of nationality”—it is “universal in [its] application.”

Summary of the Decision

In its decision, it stated that any exceptions to this clause should withstand strict scrutiny – 1) whether the practice is used to “further compelling government interests” and 2) if the use of race is “narrowly tailored” (necessary to achieve that interest). It also mentioned that exceptions were not meant to be permanent, and per a previous ruling in Grutter v. Bollinger, must at some point, end.

It cites the following reasons for ruling against the admissions programs of Harvard and UNC:

1. UNC and Harvard failed to operate their race-based programs in a manner that allows for sufficient measurement against a rubric of strict scrutiny. The “compelling interests” of “training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens” – while deemed commendable goals are insufficiently coherent and it is unclear how the court is supposed to measure these goals.
2. The admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue. It questioned the overbroad racial categories of classifying East Asians and South Asians into one “Asian” category; the use of an undefined or arbitrary “Hispanic” category; and the lack of a category for Middle Eastern students as under-inclusive. It maintained that the way students were being separated on the basis of race is not measurable and concrete enough to permit judicial review
3. It also stated that the race-based programs failed to comply with the Equal Protection Clause’s commands that that race may never be used as a negative and may not operate as a stereotype, and cited the lower admission rate for Asian American students found in the Harvard case. The Court stated that “College admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”

What this means for Employers

In light of this decision, employers should prepare to address the potential for confusion and pushback from employees and other stakeholders; as such here are some clarifying points.

1. It’s important to clarify the difference between a) federal affirmative action in the employment context, and b) affirmative action in student college admissions. The Harvard and UNC cases that the Supreme Court ruled upon are exclusively centered around the use of race as a factor in student admissions processes and have no legal effect on affirmative action in employment.
2. Organizations, including higher education institutions, that have contracts with the federal government valued at $50,000 or more, are still required as a condition of their federal contracts, to develop affirmative action programs (AAPs), maintain these on an annual basis, and certify on an annual basis that they are developing and maintaining Affirmative Action Programs for each of their establishments with 50 or more employees, in compliance with Executive Order 11246, VEVRAA, and Section 503.
3. Affirmative action in employment follows and abides by the equal employment opportunity clause and does not take into consideration race, gender, or any other identity in selection, hiring, and other employment decisions, consistent with Title VI of the Civil Rights Act of 1964. Goals stated in Affirmative Action Programs are not meant to be quotas, set-asides, or provide for preferential treatment to any one group or identity.
4. Share with your organization if your business has federal government contracts or subcontracts that make you a federal contractor or subcontractor and which require you to take affirmative action with respect to minorities, women, veterans, and individuals with disabilities.
5. The Supreme Court decision also does not address employer DEI efforts. DEI programs that are designed to provide equal employment opportunity are lawful, as affirmed by U.S. Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows’ in her statement following the decision – “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.”
6. All employers with 15 or more employees are still required to comply with the laws EEOC enforces that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy and related conditions, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information.

Conclusion

1. This decision has no impact on the contractual obligation of federal contractors and subcontractors. Until the regulations that OFCCP enforces are changed, everything remains the same with regard to federal contractor compliance.
2. This also does not change the responsibility of employers under the laws enforced by EEOC to ensure nondiscrimination and equal opportunity in all employment decisions, including hiring, firing, promotions, harassment, training, wages, and benefits.
3. That being said, this decision will have far reaching effects on campus diversity and ultimately on workforces. Lessons from the statewide bans on the use of race in the California and Michigan state university systems show that these bans led to a precipitous decline in campus diversity. As universities and other institutions of higher learning amend their admissions policies, this will have the long-range effect of narrowing the pipeline of minority candidates with 4-year degrees in the workforce, which is going to impact recruiting and meeting workforce diversification goals.
4. Education is necessary in the practice and approach to diversity so that diversity recruiting goals are not treated as a “preference” – as they are not. As we’ve stated time and time again, diversity programs should be pursued within proper legal and HR framework; meaning they should comply with the equal opportunity and nondiscrimination provisions of Title VI of the Civil Rights Act and other EEO laws. Unlike veterans and individuals with disabilities where there is no corresponding protection for non-vets and non-IWDs, care should be taken by employers when it comes to gender and race as being male and being white enjoys equal protection under the law.
5. Diversity solutions may face challenges down the road. A concern is that the decision cites the lack of metrics and measurable correlation between commendable goals and the means employed (strategies) render the admissions programs unable to face strict scrutiny. However, this should not come as a surprise. The Future of DEI Research for many years now, stated lack of good metrics as one of the top five challenges employers face in their DEI programs. That is the challenge we need to meet – developing good, measurable analytics that will drive progress in workforce diversity and inclusive culture and connect DEI KPIs to improving business performance. This is where better DEI Analytics and ESG reporting can inform and provide clarity and visibility.

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