SFFA V. UNC And SFFA V. Harvard: Navigating The Impact Across All Industries

• Published date: 24 October 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Education
• Law Firm: Jenner & Block
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz and Kathryn Wynbrandt

On October 31, the Supreme Court will hear oral argument in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, in which the Court will reconsider the legality of race-conscious admissions programs. Opponents of these programs have asked the Court to overrule its landmark decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and hold that consideration of race or ethnicity in admissions violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. The Court's decisions are expected by the end of June.

While the outcome is not yet certain, numerous https://www.latimes.com/opinion/story/2022-10-02/supreme-court-scotus-right-conservative commentators have suggested that the Court will rule against the universities. That result would have immediate and far-reaching consequences for educational institutions, which may need to redesign their recruitment and admissions programs to meet a new legal standard. But the impact of the Court's decision would not stop there: the Court's ruling could lay the groundwork for a broader assault on the use of race, ethnicity, and other protected characteristics in many programs across numerous industries. Amici supporting SFFA in the Harvard and North Carolina cases explicitly extended their arguments to attack private businesses' "corporate diversity efforts" in general. With many well-funded groups devoted to this movement, any organization that seeks to promote diversity, equity, and inclusion (DEI) could find itself in the crosshairs.

This coordinated effort to outlaw DEI efforts already extends well beyond challenges to university admissions programs to, for example, lawsuits challenging hiring policies intended to diversify the workforce,¹ efforts to support minority-owned businesses through promotional credits,² online storefronts that allow customers to sort and filter sellers based on whether they self-identify as minority-owned,³ and even the use of facially race-neutral proxies to determine student placements in public high schools.⁴

Threats to DEI programs will only increase under a Republican administration or Republican-controlled Congress. In that event, businesses will need to prepare for litigation and investigations brought by the federal government as well. Indeed, dozens of Republican US Senators...