Implications Of 'Students For Fair Admissions' For Private Employers

• Published date: 12 July 2023
• Law Firm: Katten Muchin Rosenman LLP
• Author: Ms Johnjerica Hodge, India Williams, Loren M. Lee and Catherine E. O'Brien

Late last month, the Supreme Court delivered a significant ruling on affirmative action in the jointly decided cases Students for Fair Admissions v. Harvardand 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.¹The 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...