The Supreme Court made history when it issued its long-awaited opinion regarding the constitutionality of affirmative action in Harvard College and University of North Carolina cases. As our practice update explained, SCOTUS found both Harvard's and UNC's admissions programs to violate the Equal Protection Clause of the 14th Amendment, effectively prohibiting a schools' ability to consider an applicant's race. SCOTUS provided the following direction regarding how institutions may consider an applicant's race as we advance: "Universities can consider an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But universities may not simply establish through application essays or other means the regime we hold unlawful today." Justice Kavanaugh, in a concurring opinion, stated that the ruling would apply first to those starting college in 2028.
Amid the college admission uncertainty, concerns have also emerged in the business community that the ripple effects of the SCOTUS decision may extend to corporate diversity, equity, and inclusion (DEI) programs. A more comprehensive analysis of the implications of this ruling is crucial. Although the affirmative action ruling does not directly impact employment recruitment practices and restrictions, this decision may lead employers to witness challenges against their DEI initiatives.
How Can Schools Navigate Diversity, Equity, and Inclusion Following the SCOTUS Decision?
Post-secondary schools must revamp their admissions policies and find innovative ways to safeguard a diverse student population. SCOTUS’ recent decision leaves a distinct gray area for contemplating race in the context of a student's unique experiences. Following the SCOTUS decision, minority applicants may highlight their race by sharing personal experiences in an essay. However, review of college admissions essays must be done in a manner so as not to create preferential treatment based on an applicant’s race.
Nine states have previously banned affirmative action in public college admissions: Arizona, California, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington. Today, institutions can examine the race-neutral enrollment strategies schools in the states above have implemented to achieve diversity.
As a starting point, schools in California focused on expanded outreach by strategically selecting high schools and students to visit regarding enrollment. For instance, institutions may boost outreach, by mail or in person, to underprivileged minority students by including the ZIP codes of underserved communities. This approach is strategic because there is a correlation between underserved communities and the presence of people of color residing within those areas.
In line with SCOTUS guidance, institutions should ensure that their admissions process includes a "personal" component, allowing applicants to share race-related and other experiences in compliance with the new guidelines. Moreover, institutions can begin exploring how to implement community outreach initiatives to target lower-income communities. Further, intentionally crafting essay prompts to seek information regarding whether a student is the first in their family to go to college or speaks another language may identify deserving applicants..
What Does This Decision Mean for Private Employers?
As a result of the recent SCOTUS decision, many employers fear repercussions for implementing and maintaining DEI initiatives. However, unlike in higher education, the decision does not directly impact private employers. In fact, Title VII of the Civil Rights Act of 1964 is the legislation that prohibits discrimination in employment on the basis of race and other identified protected classifications. This means that the use of affirmative action in the employment context was never a permissible hiring method. As it relates to private employers, Title VII was the applicable law before the decision and remains so. Although the law in this area has not changed, employers should be aware of the possible effect the Harvard and UNC cases may have on their diversity efforts moving forward.
DEI initiatives remain lawful—as a result, employers do not need to abandon their commitment to ensuring their workplaces remain diverse, equitable, and inclusive environments. However, this decision could mean an uptick in litigation as individuals are more emboldened to pursue "reverse discrimination cases" by attempting to apply the Court's reasoning in an employment context. As such, here are some practical steps employers can take now, as we continue to monitor the consequences of this decision:
- Review current DEI measures: Employers are encouraged to review their current diversity initiatives to ensure race and gender neutrality with counsel. The goal of diversity initiatives should be to dismantle inequitable power structures, which can be done by expanding equal opportunities to those in underrepresented groups, while still maintaining the same opportunities for those in the majority. Examples include hiring managers expanding applicant pools to recruit a wide and diverse variety of candidates or employing new and more inclusive outreach methods.
- Prioritize thorough and appropriate documentation of all employee decisions: With the expected rise in discrimination cases, it is important that employers are able to show that race is not a determinant in employee decisions, which includes hirings, promotions, and terminations. Therefore, performance-based reviews and evaluations will likely be crucial in explaining major employee decisions.
- Provide the necessary training to ensure compliance: Although trainings on “unconscious bias” have been on the rise in more recent years, it is also important to make certain that employees in upper management are aware of the intricacies of Title VII and the framework for a lawful DEI program.