Supreme Court Affirmative Action Ruling Could Impact Employers' DEI Efforts

Author: Robert S. Teachout, Brightmine Legal Editor

June 29, 2023

The Supreme Court today held that consideration of race in university admissions is unconstitutional, in a highly anticipated ruling with implications for private-sector employers.

Although Students for Fair Admissions, Inc. v. President and Fellows of Harvard College deals with education, employers and HR professionals should reassess their policies in light of the ruling to make sure they're handling affirmative action issues such as diversity efforts properly, notes Stephen Paskoff, CEO of Employment Learning Innovations and a former EEOC trial attorney.

He warned that if employers have systems in place that - even if not overtly identified - result in discriminatory results (either by proper statistical analysis and/or anecdotal evidence), that in and of itself could result in a finding of discrimination. "Employers need to be very careful that what they're doing doesn't involve race-based selection or other employment practices and conditions that are discriminatory in nature," Paskoff said.

"HR can do many things that are legitimate to recruit, engage, employ and treat individuals in a fair, consistent and legal way, which also can help diversify their staff in many ways," Paskoff advises. "HR and company leaders must continuously communicate their commitment to values - not just with words but through actions and how we communicate, interact and see one another - to build a fair and inclusive workplace in terms of actions and results that apply to everyone."

Students for Fair Admissions overturns decades of precedents supporting the use of affirmative action in university admissions. The court initially permitted the consideration of race in the admissions process in its 1978 Regents of the University of California v. Bakke ruling, while at the same time banning racial quotas. Then in 2003, the Court upheld racial consideration in Grutter v. Bollinger if it was narrowly tailored as only a "plus factor" in the admission decision and was necessary to achieve a compelling government interest - specifically, in this case, achieving the educational benefits that come from student-body diversity.

The ruling combines two cases brought by Students for Fair Admissions (SFFA) against Harvard and the University of North Carolina. Both universities include an applicant's race as one among many factors that may add points to an applicant's rating that tip the balance towards admitting an individual. SFFA claimed that:

  • Harvard University's process kept the number of Asian-American students artificially low; and
  • UNC's system gave unfair preference to Black, Hispanic and Native American applicants to the detriment of white and Asian-American applicants.