Implications Of 'Students For Fair Admissions' For Private Employers

• Published date: 12 July 2023
• Subject Matter: Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Education
• 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 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.⁵This 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...