Chinn and Boswell: Students for Fair Admissions: Why it matters and what’s next

On June 29, in the joint opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et al. (SFFA), the U.S. Supreme Court held that race-conscious admissions policies violate the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. (Slip Op. at 39.) In effect, this new holding ended previous court precedent that had allowed colleges and universities to use race as a factor in admissions. See Grutter v. Bollinger, 539 U.S. 306 (2003). Since the SFFA opinion was handed down, legal scholars and practitioners across the country have been grappling with the full extent of the holding. Questions remain about its impact beyond college and university admissions and the extent to which race and diversity initiatives may be utilized, including within the noneducation private sector.

Title VI and the equal protection clause

The SFFA challenges were based on an assertion that Harvard University’s admissions program was violating Title VI of the Civil Rights Act of 1964 and that the University of North Carolina’s admissions program was violating the Equal Protection Clause. (Slip Op. at 6.) Title VI prohibits discrimination or exclusion from programs receiving federal financial assistance based on race, color or national origin, whereas the equal protection clause prohibits governmental entities from denying a person “equal protection of the laws.” As the court laid out in its holding, a violation of the equal protection clause is also a violation of Title VI, and therefore evaluated both admissions programs under the equal protection clause. (Slip Op. at 6, n.2.) Ultimately, the court held neither admissions program’s race-conscious practices were constitutionally permissible. (Slip Op. at 30.) It can no longer be the case that admissions decisions are based on race as a determinative factor, as each applicant “must be treated based on his or her experiences as an individual — not on the basis of race.” (Slip Op. at 40.)

In examining the equal protection clause, the court reviewed a litany of its prior cases on issues beyond college admissions to arrive at its holding. (Slip Op. at 10-39.) This approach by the court has opened the door to challenging a wide array of race-conscious actions in additional settings, including employment, contracting, diversity, equity and inclusion programs, and other initiatives in both the public and private sectors. It is the tie between the equal protection clause and Title VI in SFFA that makes private sector entities subject to these challenges. The outcome of this is that other private sector actions are now within the reach of SFFA through the applicability of other federal laws, such as the employment discrimination provisions of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1981, which prohibits race discrimination in making and enforcing contracts.

Differing interpretations

In the weeks since SFFA, many colleges and universities have already revised their admissions practices to address the court’s holding, and private sector entities have grappled with the extent to which the holding may apply to them. However, the legal parameters of the holding remain somewhat unclear and open to further litigation.

Students for Fair Admissions Inc., the plaintiff in the university cases, sent a letter to universities describing its expansive view of the holding and called for universities to abandon most race-conscious practices, even those beyond final admissions decisions. Likewise, a group of Republican state attorneys general sent a letter to the CEOs of the Fortune 100 companies, calling on them to end “race-based quotas or preferences” in “employment and contracting practices,” as they may violate the SFFA holding. Later, a group of Democratic attorneys general sent a letter to the same CEOs assuring them that it was still lawful to recruit a diverse workforce and that inclusive work environments may reduce the risk of employment discrimination claims.

Federal government agencies have sent mixed signals, as well. In dueling responses to the SFFA holding by Equal Employment Opportunity Commission commissioners, Chair Charlotte Burrows stated that it remains lawful for employers to utilize programs that help pursue a diverse workforce, while commissioner Andrea Lucas stated that employers should not be making race-conscious employment actions in the name of diversity. In mid-August, the Department of Justice and Department of Education jointly issued guidance affirming that through a “holistic application review process,” colleges and universities may still consider in admissions decisions how race has affected an applicant’s life experiences, and that institutions may continue pursuing student body diversity through various programs and pipelines. However, the guidance also made it clear that race in and of itself can no longer be a factor in making admissions decisions.

All this points toward different interpretations across different jurisdictions, which will likely lead to more confusion than clarity in the short term.

What’s next for SFFA interpretation?

As the wide spectrum of SFFA interpretations suggests, the next frontier of this saga will likely be entities seeking opportunities to clarify the reach of the holding.

There are already other diversity-related challenges moving through the courts that will likely become subject to SFFA. E.g., Coalition for TJ v. Fairfax County School Board, U.S. Court of Appeals for the 4th Circuit, No. 22-1280, May 23 (challenging facial neutral admissions criteria as “proxies” for race). In the private sector, lawsuits against DEI programs have been percolating for years and may now be interpreted differently post-SFFA. E.g., National Center for Public Policy Research v. Schultz, et al., 2:22-CV-267-SAB (U.S.D.C. E.D. Wash. 2022) (dismissing challenge to Starbucks’ policy aimed at increasing representation of people of color to 30% by 2025).

Questions likely also remain for the permissibility of race-conscious scholarship awards, corporate philanthropy, private sector diversity management pipeline programs, the collection of race-related data and more. Federal contractors will likely also have to grapple with whether SFFA extends to their hiring and recruitment practices and whether SFFA may limit government-imposed diversity requirements on public sector contractor-led projects.

Recommendations

At this stage, any organization that may be impacted by the SFFA holding is likely considering how to proceed while the parameters of the holding are determined. Here is a suggested three-step approach that may be helpful: 1) consider whether and how the SFFA holding may generally apply; 2) work with legal counsel to identify specific instances in which SFFA may require making modifications or responding to potential risk exposures consistent with the organization’s values; and then 3) carefully consider how policies, procedures and practices could be modified to lessen legal exposure in light of the SFFA holding.

There is no question that SFFA will lead to many changes in our nation’s approach to DEI. Those efforts will certainly continue — perhaps in new ways. But the country is in for a long and potentially bumpy ride as the consequences of SFFA reach their destination.•

__________

Scott Chinn is a partner and Brad Boswell is a government & regulatory affairs attorney at Faegre Drinker Biddle & Reath LLP. Opinions expressed are those of the authors.