Supreme Court Hears Affirmative Action Cases
November 29, 2022
By: Colin A. Walker
The United States Supreme Court recently conducted oral argument on two cases involving affirmative action in the context of college admissions. In Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College student groups argued that two universities’ admissions programs impermissibly favored Black, Hispanic and Native America applicants to the detriment of white and Asian applicants. Although these cases do not involve affirmative action or diversity programs in employment, they could lead to other decisions in the employment context.
Affirmative action in education has a long history in the Supreme Court. In 1978, Regents v. Bakke held that racial quotas were unconstitutional but that race can still be one of several factors in the admissions process to encourage diversity. In 2003, Grutter v. Bollinger upheld the University of Michigan Law School’s admissions program, holding that because of its individualized inquiry into applicants, the program did not unduly harm nonminority applicants. In 2007, Parents Involved v. Seattle School District ruled against desegregation programs in Seattle and Louisville for using race as a deciding factor in assignments to schools. Chief Justice John Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
While these cases have no direct application in the employment context, principles adopted by courts in education cases are often applied to employment cases. If the Supreme Court restricts the right of colleges and universities to adopt affirmative action policies which favor applicants of certain races, employers’ EDI and hiring policies could come under close scrutiny. Lawsuits are likely to be filed and cases may find their way to appellate courts and, eventually, the Supreme Court. If so, Students for Fair Admissions and similar cases could be harbingers of things to come. Employers and employment lawyers would be wise to follow these decisions and carefully consider their implications on EDI policies and affirmative action initiatives.