{"id":619,"date":"2023-06-30T19:04:45","date_gmt":"2023-06-30T23:04:45","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=619"},"modified":"2023-06-30T19:05:01","modified_gmt":"2023-06-30T23:05:01","slug":"u-s-supreme-court-ends-affirmative-action-in-university-admissions-likely-leading-to-legal-challenges-to-diversity-efforts-within-corporations","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/06\/30\/u-s-supreme-court-ends-affirmative-action-in-university-admissions-likely-leading-to-legal-challenges-to-diversity-efforts-within-corporations\/","title":{"rendered":"U.S. Supreme Court Ends Affirmative Action in University Admissions, Likely Leading To Legal Challenges to Diversity Efforts Within Corporations"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr. and Rebecca S. Bjork<\/strong><\/p>\n

Duane Morris Takeaways<\/em>:<\/strong> On June 29, 2023, the U.S. Supreme Court ruled that colleges and universities may not consider the race of applicants when making admissions decisions.\u00a0 In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, <\/em>No. 20-1199 (U.S. June 29, 2023), <\/em>Chief Justice Roberts wrote the majority opinion<\/a> in a 6-3 ruling joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett.\u00a0 The <\/em>Supreme <\/em>Court held that affirmative action programs at Harvard and the University of North Carolina-Chapel Hill violated the Equal Protection Clause of the Fourteenth Amendment to the U<\/em>.S. <\/em>Constitution.\u00a0 The decision, which is 237 pages in length, including concurring and dissenting opinions, opens the door for legal challenges to be brought to employers\u2019 diversity, equity and inclusion efforts because the <\/em>Supreme <\/em>Court\u2019s reasoning \u2013 that race-conscious admissions policies<\/em> may constitute <\/em>unconstitutional differential treatment of individuals based on race \u2013 <\/em>arguably <\/em>applies to hiring and promotion decisions made within business organizations.\u00a0 <\/em><\/p>\n

Case Background<\/strong><\/p>\n

The lawsuit that led to the Harvard <\/em>decision was filed in the U.S. District Court for the District of Massachusetts by Students for Fair Admissions, Inc. (SFAA), a legal organization created to bring federal court challenges to affirmative action in college and university admissions.\u00a0 In 2014, SFAA sued both Harvard and UNC in separate lawsuits, arguing that their race-conscious admissions policies violated Title VII of the Civil Rights Act and the Fourteenth Amendment\u2019s Equal Protection Clause. \u00a0Id<\/em>. at 6.\u00a0 The First Circuit had affirmed a trial judgment in Harvard\u2019s favor, while the Fourth Circuit was considering an appeal of the UNC case when the Supreme Court granted certiorari in the Harvard case and brought the UNC case into its writ to be decided alongside it.<\/p>\n

The Supreme Court\u2019s Decision<\/strong><\/p>\n

After determining that SFAA had standing to bring its lawsuits, the majority turned to analyzing the merits.\u00a0 It focused on the Fourteenth Amendment in light of prior decisions relating to education, beginning with the holding in Brown v. Board of Education<\/em> that \u201cracial discrimination in public education is unconstitutional.\u201d\u00a0 Id.<\/em> at 13.\u00a0 After reviewing decades of case law following in the footsteps of Brown<\/em>, the majority concluded that \u201c[e]liminating racial discrimination means eliminating all of it.\u201d\u00a0 Id<\/em>. at 15.\u00a0 The majority discussed the application of the strict scrutiny test that courts apply to determine whether an exception can be made to the constitutional requirement of equal protection and analyzed how prior decisions regarding affirmative action considered the facts at hand in applying that test.\u00a0 Citing Regents of the University of California v. Bakke<\/em>, 438 U.S. 265 (1978), Grutter v. Bollinger<\/em>, 539 U.S. 306 (2003), and Fisher v. University of Texas at Austin<\/em>, 570 U.S. 297 (2013) \u2013 the latter of which was also brought by the founder of SFAA \u2013 the majority examined these prior rulings in detail.\u00a0\u00a0The majority asserted that in Fisher<\/em>, the Supreme Court made it clear that while colleges and universities could consider race in admissions decisions, the process must have \u201ca termination point,\u201d \u201chave reasonable durational limits,\u201d \u201cmust have \u2018sunset provisions\u2019\u201d and \u201cmust have a logical end point.\u201d\u00a0 Id<\/em>. at 21.<\/p>\n

The majority concluded that the end point has now been reached, deciding that both Harvard\u2019s and UNC\u2019s admissions policies that took race into consideration were unconstitutional because the operations of those programs do not create outcomes that are \u201csufficiently measurable to permit judicial [review].\u201d\u00a0 Id<\/em>. at 22. \u00a0For example, Harvard\u2019s stated purposes for using race-conscious admissions processes included \u201ctraining future leaders in the public and private sectors,\u201d \u201cpreparing graduates to adapt to an increasingly pluralistic society,\u201d \u201cbetter educating its students through diversity,\u201d and \u201cproducing new knowledge stemming from diverse outlooks.\u201d\u00a0 Id.<\/em> at 23.\u00a0 The majority held that those objectives \u201care not sufficiently coherent for purposes of strict scrutiny.\u201d\u00a0 Id<\/em>.<\/p>\n

Independently, the majority held that the programs violated equal protection principles based on statistics showing that Harvard\u2019s consideration of race in admissions led to an 11\/1% decline in the number of Asian-Americans admitted to the prestigious college.\u00a0 Id<\/em>. at 27.\u00a0 This led the majority to conclude that an individual\u2019s race is, by effect, a negative factor in the admissions process, which violates the rules set forth in the earlier affirmative action cases in higher education discussed in the ruling.\u00a0 Id.<\/p>\n

Finally, the majority expressed a caveat to its ruling forbidding the use of race-conscious processes in admissions.\u00a0 It wrote that \u201cnothing in this opinion should be construed as prohibiting universities from considering an applicant\u2019s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.\u201d\u00a0 Id<\/em>. at 39.\u00a0 Time will tell whether this creates a loophole in the majority\u2019s decision, but it clearly will encourage further litigation in the future in this area of the law, as college admissions officials grapple with how to consider and weigh the impact of such admissions essays submitted by prospective students.<\/p>\n

As expected, the dissenting Justices Sotomayor and Jackson wrote impassioned dissents, and Justice Sotomayor read hers from the bench, in terms of signaling its importance.\u00a0 They maintained that the Fourteenth Amendment itself is not race-neutral; it was drafted at the end of the Civil War precisely to provide race-based relief to former enslaved persons seeking to enter civic and commercial society.\u00a0 For these reasons, they contended that, to hold that its application requires a form of color-blindness, is in conflict with the amendment itself.\u00a0 And they expressed concern that students who are members of historically disadvantaged racial groups will find it increasingly difficult to get ahead of their non-minority peers as a result of the majority\u2019s ruling.<\/p>\n

Implications <\/strong>F<\/strong>or Employers<\/strong><\/p>\n

While one would not normally think that a decision relating to university admissions processes would implicate how employers hire and evaluate employees, in this case it does.\u00a0 Media outlets have already reported that attorneys are preparing challenges to employers\u2019 diversity, equity and inclusion programs, applying the same Fourteenth Amendment analysis outlined in the Supreme Court\u2019s decision in Harvard<\/em>.\u00a0 As such, legal department leaders in corporate America should pay attention and be aware of how this decision poses litigation risks to their businesses.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr. and Rebecca S. Bjork Duane Morris Takeaways: On June 29, 2023, the U.S. Supreme Court ruled that colleges and universities may not consider the race of applicants when making admissions decisions.\u00a0 In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023), … <\/p>\n

Continue reading “U.S. Supreme Court Ends Affirmative Action in University Admissions, Likely Leading To Legal Challenges to Diversity Efforts Within Corporations”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"ppma_author":[7,11],"class_list":["post-619","post","type-post","status-publish","format-standard","hentry","category-general"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":11,"user_id":579,"is_guest":0,"slug":"rsbjork","display_name":"Rebecca S. Bjork","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/bjorkrebecca-100x100.jpg","author_category":"","last_name":"Bjork","first_name":"Rebecca S.","job_title":"","user_url":"","description":"Read Rebecca's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/619","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=619"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/619\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=619"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=619"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=619"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=619"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}