Supreme Court Strikes Affirmative Action in College Admissions, Could Employer DEI Programs be Next?

The Supreme Court issued a decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. North Carolina, ruling that colleges and universities can no longer take race into account in admissions decisions, effectively ending affirmative action in higher education in its current form. 

Background: Previous Supreme Court precedent allowed colleges and universities to use race as one factor among others in making admissions decisions. Specifically, the Supreme Court had recognized that the importance of a diverse college campus – i.e., diversity itself – merited using race or ethnicity as one factor among many in admissions decisions. 

The Court’s decision erases that precedent and establishes that race may no longer be a factor in college admissions decisions. The Court ruled along party lines, 6-2 and 6-3 (Justice Jackson recused herself from the Harvard portion of the two cases). The Court majority held that previous precedent allowing for the use of race was meant to be temporary, and that the decision merely represents that endpoint. “The student must be treated on his or her experiences as an individual – not on the basis of race...many universities have for too long done just the opposite.” The Court found both Harvard and UNC’s admissions programs to be unconstitutional, and by extension, any consideration of race in college admissions decisions unconstitutional. The Court did acknowledge that universities could still “consider an applicant’s discussion of how race affected his or her own life, be it through discrimination, inspiration, or otherwise.”

What does this mean for employers? It is important to recognize that what was at stake in the ruling is already unlawful for employers under federal workplace anti-discrimination law (Title VII of the Civil Rights Act of 1964). Employers are already prohibited from using race or ethnicity in employment decisions, with few and very narrow exceptions. Therefore, the decision has no direct legal impact – for now – on employer practices. For a more in-depth breakdown of the legal implications for employers, please click here.

Talent implications: The decision could have significant consequences for companies’ efforts to recruit, develop, and retain diverse talent. As we articulated in our amicus brief filed with the Court, large companies rely on colleges and universities to provide a continuous pipeline of qualified and diverse job candidates. Eliminating diversity-conscious college admissions programs could negatively affect this pipeline, and companies may need to consider substantially reworking their recruiting and hiring practices as a result. 

Employer DEI initiatives next in the crosshairs? Although the result does not have any direct legal impact on employer practices, the decision may spur further scrutiny of employer DEI initiatives and their consistency with Title VII. Lawsuits against employers regarding their DEI programs could proliferate – several such lawsuits are already underway – and have received increased media attention in the wake of the decision.

HR Policy will host a webinar July 10 at Noon ET to discuss the initial implications of the decision for diverse talent recruitment and retention, employer DEI initiatives, and more. Please find registration details and more information here. We hope you can join us!