July 09, 2021
The Supreme Court deferred until next term whether it will take up a lawsuit challenging Harvard’s affirmative action policy as unconstitutional. If accepted, the case could set the stage for attacks against employer diversity and inclusion initiatives.
Students for Fair Admissions (SFA) v. Harvard, gives the Supreme Court a chance to dramatically reset its views on affirmative action programs in higher education. Harvard has prevailed twice in the lower courts, leading to the SFA’s current appeal to the Supreme Court. A ruling in SFA’s favor by the more conservative Supreme Court could effectively invalidate the use of numerous affirmative action programs in higher education as unconstitutional.
The SFA alleges that Harvard’s admissions policy involves illegal racial balancing that disadvantages Asian American applicants. Harvard has claimed that it uses race only as a “plus” factor as part of a holistic admissions process that is constitutional under previous Supreme Court precedent regarding affirmative action in higher education.
In mid-June, the Court invited the Department of Justice to weigh in on whether Harvard’s process is legal. The move to solicit input from the Biden administration means a decision on whether the Court will take up the case will not be coming for several months. If the Court ultimately grants review, the case will likely be postponed until next spring at the earliest.
Outlook: While a potential decision in the Harvard case would be confined to the higher education context—and thus have no immediate practical application to the labor and employment context—it could provide a clear signal on where the current Court stands on affirmative action in general. A change in direction could tee up a subsequent employment case that could impact employer hiring and recruiting practices. Further, curtailing the use of affirmative action programs in college admission processes could have a significant impact on employers’ access to college-level talent, as has been argued by several business groups in amicus briefs filed in the lower court proceedings of the Harvard case, and at the Supreme Court level in 2016 in Fisher v. University of Texas.