On June 29, 2023, the US Supreme Court overturned decades of affirmative action precedent by ruling that two prominent US colleges violated key anti-discrimination laws in how they took race into account in their admission practices.
Impact in Education
The decision impacts how educational institutions consider race and diversity in their admission processes. According to the decision:
- “[…] the student must be treated based on his or her experiences as an individual—not on the basis of race.”
- “[…] nothing in this 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.”
- As examples, a benefit to a student who overcame racial discrimination “must be tied to that student’s courage and determination” and “a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university”.
- The Court excludes military academies by ruling that the decision does not address whether race-based admissions advance a compelling interest in those institutions.
Impact on Employers
The Court's decision is not directly applicable to the employment context, but may lead to an increase in employees’ concerns and in discrimination litigation:
- Employers' ability to take into account race and diversity in employment-related decisions is much more limited than the affirmative action that was permitted in college admission processes prior to the recent Supreme Court cases.
- Employers’ ability to take these aspects into account as factors in hiring and other employment decisions is already strictly limited.
- Federal contractors and subcontractors are prohibited from considering race in employment decisions, although statistical analysis and gearing recruitment efforts toward diverse segments of the population are required under the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).
- However, in-house counsel should prepare US employers for (i) questions from employees regarding their organization's diversity-focused practices, (ii) a potential increase in discrimination-related litigation inspired by these Supreme Court cases, and (iii) potential future impacts on the diversity in the pool of candidates from which organizations recruit.
Supreme Court Bans Affirmative Action in College Admissions: Exploring Potential Employment Implications, by Christy Kiely, Annette Tyman, Loren Gesinsky, and Camille Olson, Seyfarth Shaw LLP (June 29, 2023)
U.S. Supreme Court Holds Use of Race In Admissions By College, University Is Unconstitutional, by Carol R. Ashley, Laura A. Ahrens & Emma R. Graham, Jackson Lewis P.C. (June 29, 2023)
Keeping DEI Legal: Voluntary Affirmative Action, by Dawn Blume, Cara Yates Crotty, ACC Docket (October 20, 2022)
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Advancing DEI in Europe, by Kimberly Nuzum, Stacey van Hooven, Simon Zinger, ACC Docket (October 10, 2022)