U.S. Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps for Employers

On June 29, 2023, the U.S. Supreme Court issued a long-awaited decision addressing the legality of race-conscious affirmative action in college admissions programs in Students for Fair Admissions, Inc. (SFFA) v. President & Fellows of Harvard College (Harvard) and SFFA v. University of North Carolina (UNC), Nos. 20-1199 & 21-707. In a 6–3 ruling,¹ the Court held that Harvard and UNC’s admissions programs, which account for race at various stages in the process, violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (the UNC/Harvard decision).

Brief Overview of the Decision

Nearly a decade ago, SFFA brought cases against Harvard and UNC alleging these universities’ use of race as a factor in college admissions violated Title VI of the Civil Rights Act of 1964 (Title VI) and the Equal Protection Clause of the Fourteenth Amendment (Equal Protection Clause). In its challenge, SFFA argued that the Supreme Court’s landmark affirmative action decision in Grutter v. Bollinger was wrongly decided and should be overruled. Harvard and UNC countered that they did not improperly emphasize race or discriminate in their admissions decisions and that the use of limited race consciousness in admissions was consistent with decades of Supreme Court precedent.

Chief Justice John Roberts, writing for the majority, begins his analysis of the legality of the universities’ affirmative action programs with a brief history of the Equal Protection Clause, which “prohibits distinctions in law by race or color” by state actors. The Court acknowledged that even after the ratification of the Fourteenth Amendment, governments engaged in pervasive racial discrimination during the post–Civil War era of legal segregation. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held these practices to be unequal and violative of the Equal Protection Clause. Since then, the Court has held that for a race-based classification to survive constitutional challenge, it must pass strict scrutiny, which considers whether the government’s interest in using race is compelling and whether the law is narrowly tailored (i.e., necessary) to achieve that interest. The Court observed that a race-based classification will rarely pass strict scrutiny. It nevertheless recognized that in certain limited situations, including “remediating specific, identified instances of past discrimination that violated the Constitution or a statute” and “avoiding imminent and serious risks to human safety in prisons, such as a race riot,” it could serve as a compelling interest for race-based government action.

The majority then turned to the application of these standards in higher education admissions, recounting its “deeply splintered decision” in Regents of University of California v. Bakke, 438 U.S. 265 (1978), which involved the University of California, Davis’ set-aside admissions program, and allowed for the use of race in admissions only as “a ‘plus’ in a particular applicant’s file.” Subsequently, in Grutter v. Bollinger, 539 U.S. 306 (2003), the Court found that the educational benefits that stem from a diverse student body are a compelling state interest but that a school could not establish racial quotas, insulate members of certain races from the normal admission processes, or otherwise seek to admit a specific percentage of a racial group simply because of its race. Moreover, Grutter held that race-based action should not involve illegitimate stereotyping or be used as a negative factor to disadvantage racial groups that were not the beneficiaries of the race-based preference. In the instant decision, the Court emphasized that Grutter imposed a limit on race-based admissions programs; specifically, Grutter reasoned that racial preferences would no longer be necessary (and hence constitutional) within 25 years of the decision (i.e., by the year 2028). Addressing Grutter’s so-called “sunset provision,” the Court observed that “[t]wenty years later, no end is in sight,” but the use of race in admissions programs “at some point … must end.”

Applying these principles to Harvard and UNC’s admissions programs, the Court determined that both were unlawful under the Equal Protection Clause. The Court held that the interests asserted by Harvard and UNC — such as “training future leaders in the public and private sectors” and “producing new knowledge stemming from diverse outlooks” — were not “sufficiently coherent for purposes of strict scrutiny.” Moreover, according to the Court, the means that Harvard and UNC chose were not sufficiently connected to the interests they pursued. For example, the Court said, the racial categories the schools used were either arbitrary or too broad. The Court also declined to defer to the schools’ assertion that race-based preferences were needed, noting that it would require instead “an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.” Further, the Court concluded that the schools engaged in the stereotype that persons of a given race all think alike and also essentially treated the race of some applicants as a negative factor in their applications. Moreover, the schools failed to provide any endpoint for the use of race in their admissions practices. For these reasons, the Court concluded that the admissions programs violated the Equal Protection Clause. The Court noted, however, that “nothing in [the] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” In short, “the student must be treated based on his or her experiences as an individual — not on the basis of race.”

Notably, the Court did not expressly overrule Grutter in its decision, as SFFA had called for. It instead applied Grutter and highlighted the “serious reservations … [it] had about racial preferences” and the limitations it placed on race-based admissions programs, including its restriction on using race for stereotyping and its emphasis that race-based admissions programs “must have reasonable durational limits” and that such “deviation from the norm of equal treatment” must be a “temporal matter.” Additionally, the Court in its majority opinion did not specifically evaluate the admissions programs under Title VI — which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance — instead reciting the principle that discrimination that violates the Equal Protection Clause committed by an institution that accepts federal funds also violates Title VI.

Justice Clarence Thomas, Justice Neil Gorsuch, and Justice Brett Kavanaugh filed concurring opinions. In his concurring opinion, Justice Thomas, noting that “it is not even theoretically possible to ‘help’ a certain racial group without causing harm to members of other racial groups,” defended the idea of a “colorblind Constitution” and stated that “all racial categories are little more than stereotypes, suggesting that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities.” Justice Thomas, who has opined that Grutter was wrongly decided, wrote that the majority opinion “rightly makes clear that Grutter is, for all intents and purposes, overruled.” In a separate concurring opinion joined by Justice Thomas, Justice Gorsuch noted the short step from Title VI to Title VII, describing the statutes as having “materially identical language” and analogizing the definition of “discrimination” under Title VI to the parallel definition of “discrimination” under Title VII in Bostock v. Clayton County, 590 U.S. ____ (2020). Note that in Bostock, the Court said that to “discriminate against” a person means “treating that individual worse than others who are similarly situated” and explained that the “statute works to protect individuals of both sexes from discrimination, and does so equally.” Justice Gorsuch questioned whether the dissenters in UNC/Harvard think Bostock was wrongly decided based on reading “the same words in neighboring provisions of the same statute — enacted at the same time by the same Congress — to mean different things.” He said, “The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their message from one moment to the next.” Even more, Justice Kavanaugh, in his separate concurrence, emphasized that the Court’s decision “appropriately respects and abides by Grutter’s explicit [25-year] temporal limit on the use of race-based affirmative action in higher education.”

Justices Sonia Sotomayor and Jackson each filed a dissenting opinion (joined by each other and Justice Elena Kagan). Justice Sotomayor wrote that through its opinion, the Court “rolls back decades of precedent and momentous progress” and “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Justice Sotomayor stated that the Equal Protection Clause of the Fourteenth Amendment “enshrines a guarantee of racial equality,” and the Court’s opinion “is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment.” Justice Sotomayor nevertheless implored universities to “continue to use all available tools to meet society’s needs for diversity in education.” In a separate dissenting opinion only as to the UNC case, Justice Jackson expounded on the benefits of considering race in higher education based on the nation’s history of perpetuating “race-based gaps” and wrote that notwithstanding the Court’s attempt to announce “colorblindness for all” by law, “deeming race irrelevant in law does not make it so in life.”

EEOC Response to Court’s Ruling

Following the Court’s ruling, U.S. Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows issued a short statement in response to the Court’s decision, saying that the decision is a departure from “decades of precedent” and “will undoubtedly hamper the efforts of some colleges and universities to ensure diverse student bodies.” The EEOC Chair underscored the benefits to companies of diversity, including attracting top talent and fostering innovation. She stated, nevertheless, that the Court’s decision “does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background” and that “[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” Further guidance from the EEOC or other government agencies may be forthcoming, but, at least for now, the EEOC appears to be taking the position that diversity, equity, and inclusion (DEI) efforts and employment actions under Title VII of the Civil Rights Act of 1964 (Title VII) and related employment statutes are distinct from the race-conscious programs at issue in the UNC/Harvard decision.

Implications of the Decision for Employers

While the longer-term consequences of the Court’s decision remain to be seen, we expect more challenges to practices that involve the consideration of any protected trait as a factor in the decision to grant or deny benefits, including in the employment context and whether involving governmental or private actors. Ultimately, employers will need to evaluate their existing DEI initiatives and related practices, affirmative action plans and programs, and environmental, social, and governance (ESG) efforts to identify the risks associated with those practices on a case-by-case basis following this ruling. Nevertheless, it seems unlikely that private employers will need to halt all initiatives aimed at advancing diversity within their workforce. Importantly, programs aimed at increasing the diversity of applicant pools still seem to be outside the confines of this decision.

Practical Steps for Employers Regarding DEI Programs

Following the Court’s decision, here are several practical steps employers can take in the near term to continue to advance diversity in the workplace while reducing the risk that they will be subject to litigation under the current legal landscape:

• Evaluate recruiting, hiring, and promotion practices. Employers should take stock of all of their current recruiting, hiring, and promotion practices to ensure that such decisions are based on an individual’s qualifications and other legitimate, business-related criteria. Race and other protected characteristics should generally not be used as a preference or deciding factor in employment decisions. The already recognized limited exception to this is voluntary affirmative action plans adopted by employers to eliminate manifest imbalances in traditionally segregated job categories as documented. Even in the implementation of affirmative action plans, however, quotas should not be used; rather, any targets of diversity on a particular metric must be consistent with the broader labor pool before instituting these remedial measures. The key is that if race or other protected categories are used at all, the use must, in fact, be remedial. The Court in UNC/Harvard highlighted this issue in observing that “neither university defends its admissions system as a remedy for past discrimination — their own or anyone else’s,” and Justice Thomas said in his concurrence that the Court’s opinion “reaffirms the need for such a close remedial fit.” Programs that use race to further commendable but immeasurable goals, like “promoting the robust exchange of ideas,” without any remedial tie will likely come under heightened scrutiny following the opinion.
• Evaluate DEI and ESG initiatives, policies, and training. In other initiatives and programs, or policies and training, that are related to advancing diversity within the workplace, employers should similarly evaluate what the current practices are and ensure that such programs, policies, and training are structured in a way that does not amount to an unlawful preference based on race or other protected characteristics or include quotas based on protected characteristics. Employers should review corporate statements, codes of ethics, employee policies, and any marketing materials around these topics as well as programs (such as mentorship programs, affinity groups, and fellowship opportunities) that are aimed at creating a more diverse pool of candidates or employees. As the Court stated, race should never be used “as a stereotype or negative.” If employer initiatives appear to disadvantage a particular group of people, or ultimately lead to disparate treatment in the terms and conditions of employment, they could be subject to increased risk of legal challenge. This may be the case particularly in “zero-sum” contexts, which the Court said made the use of race a negative factor in college admissions because the “benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”
• Redefine “diversity.” What does “diversity” in “diversity, equity, and inclusion” even mean? And what categories are being used to track “diversity”? The Court scrutinized the race-based categories being used in college admissions as “imprecise” and “overbroad,” including “grouping together all Asian students” whether they be “South Asian or East Asian … so long as there is enough of one to compensate for a lack of the other.” It also expressed that some categories are underinclusive and work to undermine, instead of promote, purported goals. In light of the ruling, employers may want to reevaluate the categories being used to identify a candidate’s race/ethnic background in the hiring process and consider whether they are overly broad or otherwise resort to improper stereotyping. It also may be worth zooming out and revisiting the threshold question of what “diversity” means to an organization and what other “experiences as an individual” — which the Court said is permissible to account for — contribute to diversity in the workplace (e.g., being a first-generation professional, having lived in different parts of the world, overcoming adversity).

• Broaden the applicant pool and build the pipeline. As a practical matter, the Court’s ruling may result in reducing the pool of diverse talent at universities and colleges from which employers recruit. Employers should consider expanding their recruiting efforts to a broader range of schools, geographic markets, industries, and businesses and organizations, using race-neutral criteria to attract more qualified candidates for opportunities and a more diverse candidate pool from which to attract and hire talent. Additionally, employers can continue to build the pipeline of diverse talent through investing in programs that support a diverse group of prospective candidates, including internship, scholarship, and mentorship programs, while not using race or other protected categories as a “stereotype or a negative.”

• Recommit to best practices. Employers should document well their internal review process for all employment decisions, including candidate evaluation and selection in the recruiting and hiring process, to account for the legitimate, nondiscriminatory reasons an employer made its choice. When decisions are made, effectively messaging the decision and trying to cultivate transparency around process may help reduce a perception of unfairness. Allowing for open channels of communication with workers and understanding what complaints, if any, there may be before they become larger issues is also helpful to keep legal actions at bay.

• Focus on inclusion and retention of current employees. Employers should continue to focus efforts on fostering a positive and inclusive workplace culture and ensuring that its best assets — its employees — feel valued and treated fairly and want to continue to devote their time and talent to the particular workplace. Refocusing on retention is particularly important if the pool of diverse talent from which employers are recruiting shrinks following the Court’s ruling.

• Train leaders, managers, and other key stakeholders. Employers should continue to train leaders, managers, and other key stakeholders who can influence or make decisions related to diversity in the workplace (e.g., human resources leaders, DEI professionals) on inclusive recruiting, hiring, and promotion strategies that do not run afoul of laws but still advance the organization’s overall goals. Training should cover implicit bias as well as antidiscrimination policies and foundational employment laws to prevent potentially unlawful recruiting practices and employment decisions based on an individual’s protected characteristics.

• Revisit affirmative action plans for federal contractors and subcontractors. Employers that are federal contractors or subcontractors and subject to Executive Order 11246 are required to maintain an affirmative action plan, and the instant rulings are unlikely to affect such mandatory affirmative action requirements. The Office of Federal Contract Compliance Programs has so far taken the position that affirmative action obligations it enforces for the federal contractor workforce are “wholly distinct” from affirmative action implemented by postsecondary educational institutions in the admissions process. Even so, mandated contractor affirmative action plans cannot have quotas, preferences, or set-asides, and any goals must be tied to the actual labor market, not laudable diversity goals. It would be prudent to ensure that these criteria are still being followed and to periodically evaluate and assess existing affirmative action plans and placement goals. Although the UNC/Harvard decision does not directly affect such historically permissible affirmative action programs, there may be challenge to such programs in the future, either through litigation or legislation, based on the Court’s reinforcement of the requirement that such remedial efforts must end at some point.

• Monitor developing case law and trends. Whether and to what extent the UNC/Harvard decision will be applied to matters implicating Title VII and other employment law statutes will likely play out in the lower courts over time. In the meantime, so-called “reverse discrimination” claims — that is, the allegation that someone in a protected class received favorable treatment because of their protected status to the detriment of someone else not in the protected class — have received more attention in recent years and are anticipated to increase. Additionally, there have been more lawsuits challenging diversity programs that take race into account in other contexts (e.g., diversity grants to nonemployees). With the help of counsel, employers should monitor cases and developing trends relating to diversity-related initiatives and employment decisions and consider whether any new precedent would affect their existing diversity-related policies and practices.

• Monitor evolving state legislation. Lawmakers in states across the country have proposed or passed legislation limiting DEI initiatives in various settings, and more laws that restrict such initiatives are likely to be introduced following the Court’s decision. Employers — especially those with a national workforce — should continue to monitor developing state laws to ensure that their DEI programs and initiatives do not run afoul of new legislation that may affect their organization.

• Work with legal counsel. Employers seeking to maintain diversity commitments and initiatives should have legal counsel evaluate their existing programs in light of the Court’s ruling and should implement programs to monitor developments in case law.

Our Sidley team is continuing to review the decision and any implications in the coming weeks. Our lawyers are uniquely positioned to assist in advising on the multidisciplinary aspects of this decision and are here to help.

¹The Court’s vote was 6–3 in SFFA v. UNC and 6–2 in SFFA v. Harvard, as Justice Ketanji Brown Jackson recused herself.