Implications Of U.S. Supreme Court Decision Overturning Affirmative Action Precedent In Higher Education

• Published date: 08 September 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Consumer Protection, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations, Education, Diversity, Equity & Inclusion
• Law Firm: Proskauer Rose LLP
• Author: Mr Joseph Baumgarten, Guy Brenner, Evandro Gigante, Keisha-Ann Gray, Steven Pearlman and Rachel Fischer

On June 29, 2023, the U.S. Supreme Court ruled in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race-conscious admissions programs at Harvard College and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.

The Court held that these universities' use of race in their admissions processes lacked sufficiently measurable objectives and clear durational endpoints, making them unlawful under the strict scrutiny standard. Some Justices dissented, arguing that race-conscious programs are necessary to achieve diversity and equity.

While the Court's ruling on affirmative action did not involve private-sector employment, the decision poses potential implications for policies, programs and practices employers develop to advance their own diversity, equity, and inclusion.

Q&A

1. What are the implications of the Supreme Court's decision on employers?

At first blush, there is an argument that the ruling does not directly impact employers because it arises in the context of Title VI of the Civil Rights Act of 1964 (which applies to educational institutions that receive federal funding) and the Fourteenth Amendment (which applies to government and quasi-government actors). Employers, by contrast, are subject to Title VII of the Civil Rights Act. In support of that argument, following the Court's ruling, EEOC Chair Charlotte Burrows issued a statement indicating 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."

But employers still face noteworthy risks, particularly with respect to disparate treatment reverse discrimination claims, in the wake of this ruling. Plaintiffs pursuing such claims are apt to point to and capitalize on two things. First, they may rely upon the Majority's conclusion in the educational context to suggest that reliance upon race in connection with a DEI initiative when making employment decisions'especially where the employment decision involves a zero-sum game'amounts to prohibited discrimination. Second, they can be expected to point to Justice Gorsuch's concurring opinion noting that Title VI and Title VII have "essentially identical terms."

Considered in appropriate context, it is important to recognize that, in the years leading up to the recent U.S. Supreme Court decision, plaintiffs have increasingly pointed to employers' race-conscious diversity programs as evidence of discriminatory intent, and some of these challenges have been quite successful. To illustrate, in Duvall v. Novant Health (W.D.N.C. Oct. 26, 2022), a jury issued a sizeable verdict to a plaintiff who alleged he was discharged because of his employer's diversity initiatives; he claimed that a diversity program resulted in white men being targeted for termination in order to be replaced by women and racial minority candidates.

On the other hand, many employers have been facing pressure from stakeholders and litigation seeking to reaffirm...