The U.S. Supreme Court held on June 29 that an applicant's race alone cannot be used as a factor in college admissions. Previously, colleges could use race in admissions as a "plus" factor for individual applicants in what was described as a holistic approach where race was considered along with other factors, based upon a university's interest in having a racially diverse student body.
Details of the Court's Decision
In Students For Fair Admissions, Inc. v. President and Fellows of Harvard University and Students for Fair Admissions, Inc. v. University of North Carolina, a group of Asian American students sued Harvard University and the University of North Carolina, claiming the schools' race-based admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Both colleges consider race at various stages of the admissions process to achieve racial diversity in classes.
The colleges justified their race-conscious admissions programs by claiming racial diversity among students improves the educational experience by exposing students to diverse points of view and life experiences, promotes the robust exchange of ideas, and prepares engaged and productive citizens. The Supreme Court found such justifications "lacked sufficiently focused and measurable objectives warranting the use of race." The Court noted that a measurable justification could include "remediating specific, identified instances of past discrimination that violated the Constitution or statute," but did not expound on what remedy would be permitted.
The Court explained that the Equal Protection Clause imposes "twin commands" that race can never be used as a negative or a stereotype. According to the Court, consideration of race under the admission programs led to a decrease in the admission of Asian Americans and promoted stereotypes because it assumes that a racially diverse student brings something to their campus that a non-diverse student does not. The Court emphasized that admissions programs cannot be based on a "belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue."
On the other hand, the Court stressed that its opinion "should not be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. The student must be treated based on his or her experiences as an individual—not on the basis of race." Thus, universities should evaluate whether they may consider properties other than race, such as socioeconomic status or native fluency of a foreign language, which might in some cases overlap with race.
Colleges and universities reviewing and considering alterations to their admissions programs in the wake of the decision should consult with legal counsel. Among other factors to consider is the import of three concurring opinions, each of which joined the 6-3 majority opinion in full, but described the impact and scope of the ruling in different terms. Further, in the wake of the decision, some civil rights groups have asked the Department of Education to examine the use of legacy admission preferences at schools like Harvard. Suffice it to say for now that the landscape for the use of race in admissions has shifted, and the status quo has been altered. Colleges and universities should evaluate their policies and watch these developments.
How Does the Ruling Affect DEI Initiatives and Employment Decisions?
Most if not all organizations are considering what impact the decision has on diversity, equity, and inclusion (DEI) initiatives, such as those in the employment context. During oral arguments, one concern highlighted by Justice Elena Kagan was what impact these cases could have in the workplace. Some commentators post-decision have contended that the ruling calls the legality of such programs into question.
The decision addresses the consideration of race in the college admissions process, whether it is one factor of many or through a holistic approach and ruled that such consideration is unconstitutional under the Equal Protection Clause. The majority opinion does not discuss diversity initiatives in other contexts like employment, which for most employers are governed by Title VII of the Civil Rights Act of 1964.1
Title VII bans the use of race and other protected characteristics in employment decision making with some limited exceptions. One exception is an employer's consideration of race as a factor in making selections where:
- On a voluntary basis, the employer can show a manifest imbalance between groups in traditionally underrepresented job categories as evidenced by structured statistical analysis;
- Narrowly tailored measures to address specific imbalances do not "unduly trammel the rights" of non-diverse candidates; and
- DEI programs are temporary or limited in duration and designed to "attain, not maintain, balance" in the affected workforce population.2
While the Supreme Court decision does not discuss diversity initiatives in the employment context, organizations, with the assistance of counsel, should evaluate any existing DEI programs to assess any risk in light of the decision. This may include analyzing the use of race-conscious decision making in employment practices, investment strategies, or contracting with third-party vendors.
Organizations should also monitor developments via rulings from lower federal courts addressing the use of race in the employment context. The EEOC might develop public guidance in light of the Chair's post-decision declaration that employers can continue to use DEI initiatives.
Special thanks to Jacob Blais, a 2023 summer associate and rising second-year law student at Washington University in St. Louis, who contributed to this update.
Footnotes
1. Justice Gorsuch, in his concurrence (joined by Justice Thomas), declared that the admissions policies violate Title VI of the Civil Rights Act and argued that Title VI and Title VII should be interpreted similarly.
2. See Proceed with Caution: Voluntary Diversity Efforts Must Be Undertaken With Care To Limit Litigation Risks For Employers, Reed L. Russell & Julie A. Girard (Phelps Dunbar), Fla. Bar. J., Vol. 95, No. 6 (Dec. 2021)
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