On June 29, 2023, the United States Supreme Court issued a decision that will potentially shape the college admissions process for generations of students. In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court held that race-conscious admissions programs violate the Equal Protection Clause of the Fourteenth Amendment.[1] The admissions programs of Harvard University and the University of North Carolina utilized race as a factor when admitting perspective students, and for Harvard, race oftentimes served as “a determinative tip for a significant percentage of all admitted African American and Hispanic applicants.”[2] The Court struck down those programs, and in doing so, relied on the Equal Protection Clause’s “core purpose” of eliminating governmentally imposed discrimination based on race.[3] Although the holding applies only to educational institutions that accept federal funding, it raises significant questions concerning the ability of private employers to institute diversity, equity, and inclusion (“DEI”) programs in their hiring practices.
In the five decades preceding the decision in Students for Fair Admissions, Justice Lewis F. Powell, Jr.’s opinion in Regents of University of California v. Bakke served as the benchmark for the Supreme Court’s affirmative action jurisprudence.[4] There, the Supreme Court in 1978 struck down a medical school’s admissions program in which it set aside a specific number of spots for members of certain minority groups. Although the case resulted in six separate opinions in which none commanded a majority of the Court, Justice Powell delivered the Court’s judgment. Justice Powell held that universities could not employ “set-aside” admissions programs that rely on race-based quotas.[5]
After striking down the medical school admissions program, Justice Powell clarified that universities may consider race as a “plus in a particular applicant’s file” because it promotes the compelling interest of educational institutions to “obtain[] the educational benefits that flow from an ethnically diverse student body.”[6] He further noted that institutions could consider race in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.”[7] Nonetheless, Justice Powell’s opinion stood alone – four of the Court’s nine justices concluded that the government may consider race to remedy effects of past societal discrimination, while the Court’s remaining four justices held that universities should employ a colorblind approach. Finally, twenty-five years later, a majority of the Supreme Court officially adopted Justice Powell’s position in Grutter v. Bollinger in 2003.[8]
Despite Justice Powell’s longstanding framework, the Supreme Court in Students for Fair Admissions held in 2023 that institutions of higher education may no longer consider race during the admissions process in any capacity. In a majority decision authored by Chief Justice John Roberts, the Court relied upon decisions from the Civil Rights Era, including Brown v. Board of Education, for the principle that the Equal Protection Clause protects from discrimination based on race.[9] Consequently, because the admissions programs at issue expressly considered race, the Court applied the strict scrutiny standard of judicial review, in which the policies at issue must: 1) further compelling governmental interests; and 2) be necessary for achieving that interest.
In applying that standard, the Court found that the admissions programs could not survive either step of a strict scrutiny analysis.[10] First, the Court noted that it could not sufficiently measure the interests asserted by the universities, including interests similar to those that Justice Powell endorsed in Bakke, such as promoting diverse outlooks and facilitating a robust marketplace of ideas. Further, the Court noted that the programs’ means for achieving those goals were impermissibly broad.[11] The Court particularly focused on the fact that the programs defined the categories of races in a manner that was overbroad, arbitrary, and underinclusive – for instance, the programs lumped together South Asian and East Asian students under one racial category. Notably, the Court also held that race-conscious policies negatively impacted certain races, namely Asian Americans, because “admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.”[12]
Following that extensive analysis, the Court clarified that applicants may still discuss, and universities may still consider, how race has affected their lives. For instance, universities may provide a benefit to students who have overcome racial discrimination, but it “must be tied to that student’s courage and determination.” [13] However, the Court provided the express instruction that universities could not attempt to circumvent the holding by establishing a regime of essays topics or other means that directly concern an applicant’s race.
The implications of the Supreme Court’s decision in Students for Fair Admissions could loom large for private businesses that employ DEI programs. Although the decision applies only to institutions of higher education that receive federal funding pursuant to Title VI of the Civil Rights Act of 1964, the very policies and interests that the Court rejected mirror those that countless employers subject to Title VII of the Civil Rights Act consider when implementing DEI programs. For instance, the Court rejected the universities’ arguments that cultivating diverse demographics, creating future leaders, and remedying prior discrimination are sufficient interests to justify the consideration of race.
Indeed, the Attorneys General of thirteen states (Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, and West Virginia) have already threatened to enforce “serious legal consequences” on Fortune 100 companies that utilize employment practices based on race.[14] In issuing a joint letter, the Attorneys General indicated that, in light of the Supreme Court’s recent holding, companies must “overcome [their] underlying bias and treat all employees, all applicants, and all contractors equally, without regard for race.”[15] In particular, the letter relies upon Justice Gorsuch’s concurrence in Students for Fair Admission, in which he notes that courts often apply the principles of Title VI and Title VII equally with one another.[16]
With approximately 59% of companies presently employing some form of DEI initiative, the decision in Students for Fair Admissions is likely to induce a flurry of legal challenges concerning such programs.[17] Consequently, this may require countless employers to reassess and recalibrate their inclusion strategies and hiring practices in the coming months.
[1] 143 S. Ct. 2141, 2175 (2023).
[2] Id. at 2155 (internal quotation marks omitted).
[3] Id. at 2161.
[4] See 438 U.S. 265, 269 (1978); see also Grutter v. Bollinger, 539 U.S. 306, 323 (2003) (noting that Justice Powell’s opinion “serv[es] as the touchstone for constitutional analysis of race-conscious admissions policies”).
[5] Bakke, 438 U.S. at 269.
[6] Id. at 317 (internal quotation marks omitted).
[7] Id.
[8] Grutter v. Bollinger, 539 U.S. 306, 325 (2003).
[9] Students for Fair Admissions, 143 S. Ct. at 2159–62 (citing Brown v. Bd. of Ed., 349 U.S. 294, 300–01 (1955)).
[10] Id. at 2166.
[11] Id. at 2167–68.
[12] Id. at 2168–69.
[13] Id. at 2176.
[14] Students for Fair Admissions Letter to Fortune 100 CEOs (July 13, 2023), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2023/pr23-27-letter.pdf
[15] Id.
[16] Students for Fair Admissions, 143 S. Ct. at 2216 (Gorsuch, J., concurring).
[17] Scott Wooldridge, Affirmative Action ruling could have an effect on DEI programs in the workplace, ALM BENEFITS PRO (July 12, 2023), https://www.benefitspro.com/2023/07/12/affirmative-action-ruling-could-have-an-effect-on-dei-programs-in-the-workplace/?slreturn=20230616115855.
