The Evolving Impact of the Supreme Court’s Affirmative Action Decision on Seacoast Employers

Brian Garrett headshot
Brian B. Garrett
Director, Litigation Department and Chair, Education Law Practice Group
Published: Seacoast Online
November 2, 2023

The Supreme Court’s June ruling in Students for Fair Admissions v. President & Fellows of Harvard College curtailed decades of precedent permitting colleges and universities to use affirmative action programs in connection with admissions decisions.  While the SFFA decision does not directly address employment practices, the rationale supporting it, and subsequent legal action, have the potential to impact employers in the future.

The Supreme Court’s ruling analyzed the constitutionality of using race in the admissions process at the oldest operating private and public universities in the United States:  Harvard College and the University of North Carolina, respectively.  Prior to SFFA, the Supreme Court had, on numerous occasions, approved of race-conscious admissions practices that used race as a factor in a holistic review of an applicant.  However, the current Supreme Court found that any use of race in admissions decisions—aside from a small carve out for considering an applicant’s discussion of how race affected the applicant’s life—violates the equal protection clause of the United States Constitution and is therefore illegal.

In the wake of the SFFA decision, certain practices of employers may be subject to additional challenges from prospective plaintiffs.  While the decision is not controlling as to private employers in the hiring context—in large part, employers have long been prohibited from using race as a factor in hiring decisions—the rationale set forth in the decision may be used to challenge certain employment practices through different legal avenues.

For example, diversity, equity, and inclusion (“DEI”) initiatives may be exposed to additional attack through “reverse discrimination” claims under laws like Title VII or state non-discrimination laws—or, as we have seen in cases brought against the law firms, Perkins Coie and Morrison & Foerster, in August, arguments under Section 1981 of the Civil Rights Act of 1866.  In those recent cases, a non-profit group, American Alliance for Equal Rights, relied on, in part, SFFA in arguing that each law firm illegally limited fellowship applicants to students of color, LGBTQ+ students, or students with disabilities.  It’s unclear how a court would view this legal approach, particularly since both cases were dropped after each law firm revised their respective diversity fellowships to be more inclusive.

This dynamic is also playing out in the political sphere.  Immediately following the SFFA decision, the Equal Employment Opportunity Commission issued a statement reminding employers that the decision did not address efforts “to foster diverse and inclusive workforces.”  On the other end of the political spectrum, in July, Senator Tom Cotton sent a letter to 51 major law firms throughout the country, warning that diversity programs pose legal and practical risks for companies. Similarly in July, 13 state Attorneys General issued a letter to Fortune 100 companies, warning that discrimination under the label of DEI or otherwise is illegal and that companies that engage in such discrimination may face serious legal consequences.

The SFFA decision may also be used to challenge existing policies that are race neutral but favor one race in practice.  In the education context, this would include challenges to admission practices that give a preference to legacy students or to substantial donors, as they tend to favor non-minority students and applicants.  In fact, Harvard is again embroiled in litigation and government oversight concerning this very issue.  As such, similar recruiting and hiring efforts by employers could come under scrutiny as well.

Care should be taken in reviewing policies, procedures, and initiatives concerning employers’ DEI efforts moving forward.  Employers interested in continuing such efforts would be well-served by ensuring that they understand the evolving legal landscape. General or broad DEI mission statements may need to be revised to identify specific goals and outcomes that align with legitimate business reasons and are narrowly tailored to limit any actual or perceived negative impact to other groups of individuals.  Employers may also wish to consider the exclusivity of certain employee groups to ensure equal access to potential benefits by all employees.  Further, employers should reinforce through training and policies that all employment decisions must be based on legitimate business-related criteria, rather than on protected categories, such as race, religion, or gender.

With that said, the SFFA decision does not mean that employers must abandon current DEI initiatives or practices.  It also does not upend current laws that encourage or require certain conduct relative to diversity and inclusion efforts.  What the SFFA decision does mean is that employers should be mindful of their employment practices, the reasons behind those practices, and the impact those practices have on the minority and non-minority populations serviced and employed by them.