- On October 31, 2022, the U.S. Supreme Court heard two cases that will determine the legality of affirmative action in college admissions decisions.
- During oral arguments, Justice Elena Kagan raised the issue of whether employers may consider the benefits of diversity when making hiring decisions.
- If the Court invalidates the colleges' admissions programs private employers and federal contractors may need to re-evaluate their voluntary DEI measures.
On October 31, 2022, the Supreme Court of the United States (SCOTUS) heard oral arguments for two controversial affirmative action cases against Harvard University and the University of North Carolina (UNC). While the legal framework for affirmative action programs and diversity, equity, & inclusion (DEI) initiatives differ across academic and employment contexts, these high-profile decisions are bound to have implications for private employers and federal contractors.
Background
In 2014, Students for Fair Admissions, Inc. (SFFA) brought two lawsuits against Harvard and UNC. In both cases, SFFA-a non-profit group opposed to racial preferences in college admissions-alleged that Harvard and UNC violated Title VI of the Civil Rights Act of 1964 by, among other things, intentionally discriminating against Asian-American applicants, employing "racial balancing," failing to use race as a mere "plus factor" in decisions, and failing to utilize race-neutral alternatives. In challenging the admissions policies, SFFA requests that SCOTUS overrule Grutter v. Bollinger, 539 U.S. 306 (2003), the landmark case in which SCOTUS held that a "race-sensitive" admissions program that considers race as only one factor and gives individual consideration to each applicant is lawful.
In January 2022, SCOTUS accepted an appeal from the First Circuit and agreed to hear SFFA's case against UNC. SCOTUS heard oral arguments in the Harvard and UNC appeals on October 31, 2022.1
Overview of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
In 2014, SFFA initiated its case against Harvard in the United States District Court for the District of Massachusetts (Boston).2 SFFA argued that Harvard's admissions policy/practices violate Title VI of the federal Civil Rights Act, which prohibits racial discrimination by entities receiving federal funding.
In general, applications pass through a multi-tiered process when they arrive at Harvard's Admissions office. Throughout this process, admissions officers may consider race as a single factor in an otherwise far-reaching review of applications, and the Dean of Admissions shares the projected racial makeup of the admitted class with the full committee throughout a year's admissions cycle, which may influence offers.
SFFA alleges that Harvard's admissions policy violates Title VI by intentionally discriminating against Asian-American applicants, employing racial balancing, failing to use race as a mere "plus factor" in decisions, and failing to utilize race-neutral alternatives. The district court agreed with SFFA that "strict scrutiny"-the requirement that a race-conscious program be "narrowly tailored" to a "compelling interest"-was the right standard under which to review its claims. But ultimately, the district court found no evidence of intentional discrimination or racial balancing. Among other things, the district court found that that the admissions practices of Harvard followed the "plus factor"...
