United States: U.S. Supreme Court Limits Affirmative Action

In a 6-3 decision likely to have immediate impacts beyond the world of higher education, on June 29, 2023, the U.S. Supreme Court held that Harvard's and the University of North Carolina's admissions programs violate the Equal Protection Clause of the Fourteenth Amendment and clearly stated that Title VI of the Civil Rights Act, which applies to entities receiving federal funding, must be interpreted in the same way as the Equal Protection Clause.

The Ruling

In the companion cases Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina ("Harvard/UNC"), a group of Asian-American students sued Harvard and UNC alleging pervasive anti-Asian discrimination in the schools' admissions process. The Supreme Court had previously held that universities could utilize "race-conscious" admissions policies when deciding whether to admit a student. The Supreme Court granted review in Harvard/UNC to reconsider whether the affirmative action programs of public and publicly funded colleges and universities violated the Equal Protection Clause and/or Title VI.

In its decision, the Court held that both universities' admissions programs violated equal protection. The Court reasoned that Brown v. Board of Education, 347 U.S. 483 (1954), established the fundamental principle that racial discrimination in public schools is unconstitutional and that equal protection cannot mean one thing for one individual and something different for another. The Court acknowledged that it had permitted race-based college admissions as an exception to the Equal Protection Clause but had done so with limits: The programs were required to satisfy strict scrutiny, could not use race as a stereotype, and had to end at some point.

The Court held that the universities' admissions programs failed all three components. The programs' stated goals could not be subject to meaningful review, and the universities had not connected their admissions programs to those goals. Finally, the affirmative action admissions programs had no termination point. The Court concluded: "the student must be treated based on his or her experiences as an individual-not on the basis of race."

Potential Impact

The Court's decision is likely to have far-reaching consequences. For example, Title VII and other antidiscrimination statutes currently prohibit employers from making employment decisions based on race and other protected categories. Under limited circumstances, employers may implement voluntary affirmative action plans to remedy past discrimination or eliminate a manifest imbalance in a traditionally segregated job category. Such affirmative action plans must be limited in time and scope. One concurring opinion (Gorsuch, J.) states that Title VII has the same categorical prohibition on racial discrimination as Title VI.

Against the current legal landscape, many employers have developed a wide range of diversity, equity, and inclusion ("DEI") initiatives-ideally structured to be compliant with antidiscrimination laws. We expect the Court's decision to prompt an increase in discrimination claims based on DEI initiatives.

Next Steps

Employers should review their DEI initiatives to ensure they comply with the Court's decision. Under Title VII, DEI initiatives generally may not involve race-based quotas or encourage employment decisions that favor any particular protected category. DEI programs can lawfully contribute to recruitment of diverse candidates, establishing mentorship programs and affinity groups available to all employees, developing relationships with diversity-oriented organizations, and conducting diversity and inclusion trainings. In addition, where applicable, employers should review their affirmative action plans. Government contractors, for example, are required to implement affirmative action plans, but those plans need to be structured to be legally compliant.

Finally, businesses that receive federal funding (such as research labs receiving federal grants) and businesses that are subject to nondiscrimination mandates (such as financial institutions subject to fair lending laws) should evaluate the potential impact of the Supreme Court's decision on their operations. The Court made clear that Title VI, which disallows discrimination for entities receiving federal funding, must be interpreted in the same way as the Equal Protection Clause. There is likely to be increased scrutiny on all federal-fund recipients and new challenges arising from nondiscrimination requirements going forward.