The Summer’s death knell for affirmative action has passed—Now what?

It may not quite be a brave new world, but a pendulum-swing-sized shift in the legal framework for these matters deserves the ongoing attention of higher ed’s legal and business leaders.
Jim Thelen
Jim Thelen
Jim Thelen is a higher education labor and employment lawyer, strategist, and thought leader at Littler Mendelson P.C. In addition to private legal practice, he’s worked for 13 years in legal and executive administration roles in both public and private higher education institutions in Michigan and Maine.

As higher education institutions kick off the 2023-2024 academic year, the Supreme Court’s decisions from earlier this summer that struck down race-conscious admissions practices at Harvard and the University of North Carolina are slipping farther out of view in the proverbial rear-view mirror.

After the higher education legal community gave the decisions the exhaustive read they deserved, there was no question that the constitutional rug had been pulled out from under all institutions that considered race among the factors that shaped admissions decisions. What’s more, it was reasonably clear that the decisions potentially impact affirmative action in employment for government contractors and broader voluntary inclusion, equity, and diversity programs as well.

For higher ed leaders, the national conversation pivoted quickly to the propriety of legacy and donor preference admissions programs, as well as how closely scrutinized the admissions essay may be in the future as a tool for institutions to evaluate how an individual’s experience with race shapes their suitability and fit for an incoming freshman class and the campus environment at large.

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What now?

For all practical purposes, the Court’s ruling effectively makes unlawful any ongoing direct or even indirect use of a college applicant’s race in making admissions decisions to achieve student body diversity in higher education.

The Court’s majority suggested that it would be acceptable for a university admissions counselor to consider—in an admissions essay, for example—how an applicant overcame racial discrimination or how the student’s ethnic heritage or culture motivated him or her to assume a leadership role or attain a particular goal. The admissions decision itself could not be based solely or even in part on the student’s race, the Court’s majority said, but instead on that student’s expressed courage and determination or demonstrated unique ability to contribute to the university.

Beyond admissions, the Supreme Court’s Harvard/UNC decision does not directly impact employment law—including federal contractors with mandatory Affirmative Action programs (AAPs) and private employers with voluntary inclusion, equity and diversity (IED) initiatives—but may impact the way the public, employees, the judiciary, government agencies and opposition groups looking for ways to legally challenge such programs evaluate them going forward.

Moving forward

The current spotlight is on legacy and donor admissions preferences, which some view as implicitly favoring wealthier white applicants at the expense of others. Following shortly after the Supreme Court’s decisions were handed down, Occidental College and Wesleyan University announced that they would end legacy admissions preferences; Amherst College had already done so during the pandemic. And the U.S. Department of Education’s Office of Civil Rights announced in late July that it had launched an investigation into whether Harvard’s use of donor and legacy preferences in its undergraduate admissions practices discriminates on the basis of race.

More generally, beyond higher education, global trends toward prioritizing IED initiatives over the last few years brought a sometimes harsh spotlight onto those very initiatives. In recent years, for example, employers have faced challenges to their hiring, promotion, or termination practices under the lens of “reverse racism” and “reverse discrimination.” Considering the impact of the Harvard/UNC decision on college admissions, challenges to race-based employment practices—or perceived employment practices based on any protected category—may increase or evolve in an effort to force a national standard for employers similar to college admissions.

Some states are already increasing their legislative efforts to curtail IED programs in the workplace. Texas, for example, recently passed Senate Bill 17, which prohibits higher education institutions from establishing or maintaining IED offices, requiring diversity training for students and employees, or making employment decisions that take race into account. In states where such legislation has already taken effect or will soon take effect, employers should be mindful to ensure that any IED initiatives they previously established do not run afoul of the law as modified.

Considering this, as university admissions offices rethink how to achieve diversity without making race itself a determinative factor in the admissions process, universities-as-employers should vet and review planned and ongoing IED initiatives with legal counsel, taking advantage of legal privilege to carefully consider the Court’s decision and evaluate their relative risk considering the institution’s IED values or qualitative goals.

It may not quite be a brave new world, but a pendulum-swing-sized shift in the legal framework for these matters deserves the ongoing attention of higher ed’s legal and business leaders.


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