What Will the U.S. Supreme Court’s Ruling on Affirmative Action Mean for Employers?

The US Supreme Court is hearing arguments for and against affirmative action (AA) in the cases of Harvard University and the University of North Carolina (UNC). The high court is expected to decide by late spring 2023 whether to:

• Uphold AA as a remedy for past discrimination in college admissions
• Rule it unconstitutional because of what its opponents think is an unfair advantage based on race rather than merit

The arguments for and against AA have gone on for decades. The lower courts had always declared it an acceptable remedy for reversing the harmful effects of discrimination in college admissions and employment. Therefore, they turned down claims of unfairness. Fast-forward to 2022, and the high court has chosen to hear and rule on these age-old arguments.

No one can predict the outcome of any court decision. Those on either side of the issue know that if their side loses, the loss could ultimately change how they diversify their organizations. This includes businesses as well as colleges and universities.

So, how will the high court’s decision on whether to uphold AA or declare it unconstitutional impact employers’ efforts regarding:

• Recruiting
• Hiring
• Diversity, equity, and inclusion (DEI) efforts

Before dissecting the academic arguments, a look into AA’s 87-year history shows that its history is rooted in employment.

AA’s employment roots

The Civil Rights Act of 1866 is a forerunner of AA. Congress passed the law to protect the legal rights of newly freed slaves from restrictive, anti-Black, southern state ordinances following the Civil War. Among other protections, the 1866 law gives “all citizens” and “all persons” the same rights when it comes to owning property and making or entering into contracts, rights once reserved for White men and, later, White women.

The 19^th-century law evolved over time with the addition of Section 1981, which focused on banning discrimination in employment.

The term “affirmative action” first appeared in the National Labor Relations Act of 1935 (NLRA), or the Wagner Act, which formed the National Labor Relations Board (NLRB) and collective bargaining. AA’s term simply meant for government and businesses to “act affirmatively.” It was intended to ensure the fair treatment of employees rather than let working situations unfold on their own.

The term “affirmative action” first appeared in the National Labor Relations Act of 1935 (NLRA), or the Wagner Act, which formed the National Labor Relations Board (NLRB) and collective bargaining.

In 1941, civil rights activist A. Philip Randolph planned a national rally in Washington, DC, to protest the segregation of Black Americans in the armed forces and the denial of their employment in the defense industries. However, six days before the rally, Pres. Franklin D. Roosevelt stepped in with Executive Order 8802 to create the Fair Employment Practices Committee (FEPC), which requires defense contractors to allow all employees full participation in defense industries without discrimination. His action stopped the rally from occurring.

Although the FEPC didn’t refer to AA by name, it set off a series of executive orders to back up the concept in government employment.

AA-based executive orders

Building on Roosevelt’s order, Pres. Dwight D. Eisenhower issued Executive Order 10479 to create the anti-discrimination Government Contract Committee.

Following Eisenhower’s order, Pres. John F. Kennedy boosted AA through Executive Order 10925 in 1961 to prohibit government employers from discriminating against employees because of:

• Race
• Color
• Creed
• National origin

Black Americans, in particular, had been systematically barred from employment and admission to colleges and universities solely because of their race.

In 1965, Pres. Lyndon B. Johnson promoted the federal government’s commitment to equal employment opportunity (EEO). Two years later, Executive Order 113AA expanded AA to include:

• Women
• People with disabilities
• Veterans

Today, Title VII of the 1964 Civil Rights Act sets the standard for eliminating discrimination in employment.

Affirmative Action in education

AA in academics centered on racial segregation in primary and secondary schools, starting with the 1954 Brown vs. Board of Education case. The high court ruled that the Topeka, Kansas, Board of Education must have plans to desegregate its school systems to comply with the decision. By 1968, the court ruled that school boards across the country do the same in Green v. County School Board of New Kent County.

Throughout the 1960s, colleges and universities across the US began adopting AA policies. The purpose was, and continues today, to bring in Black, and other nonwhite students historically denied admission to higher education institutions.

A high court ruling in 2003 may have given colleges and universities the green light to move ahead with their AA policies. The court agreed in Grutter v. Bollinger that the University of Michigan Law School could consider race in its admissions practices to diversify the student body.

Retired Justice Sandra Day O’Connor, who weighed in on Grutter, wrote in her majority opinion that racial preferences won’t be necessary in the next 25 years (2028). Whether AA is still necessary 19 years later is one of the questions before the court.

Pro and con arguments

AA has been challenged throughout its history by high-profile academic-based court cases such as Regents of the University of California v. Bakke (1978) and Fisher v. University of Texas (2016). The plaintiffs in these cases, Allan Bakke and Abigail Fisher, who are both White, claimed that they were denied admission to the universities because of what they viewed as the schools’ preference for admitting “less qualified” applicants of color.

The Supreme Court heard another round of arguments challenging AA in October 2022. These hearings could “set the stage” for how employers go forward with DEI plans and handling possible discrimination claims.

Anti-Affirmative Action viewpoint

Harvard and UNC are just two among several higher education institutions across the US, factoring race, along with other credentials, into their admission decisions. But a group of white and Asian American students, known as Students for Fair Admissions (SFFA), claim that their schools’ AA admission practices discriminate against applicants from their own ethnic or cultural backgrounds in favor of Black and Hispanic applicants.

SFFA filed complaints against the schools in 2014. Lower courts routinely turned down anti-AA arguments in past years. But the Project on Fair Representation, led by conservative activist Edward J. Blum, took its anti-AA opinion to the Supreme Court for review.

Issues raised during arguments

In hearings before the high court, the plaintiffs in Students for Fair Admissions vs. President and Fellows of Harvard College and Students for Fair Admissions vs. University of North Carolina raised these issues in their arguments:

• Colleges and universities that use race in their admission decisions may be violating the Civil Rights Act of 1866 (constitutionalized by the 14^th Amendment), which, as written, bans racial classification, whether it benefits White or Black Americans.
• The Civil Rights Act of 1866 is a series of colorblind measures and requirements.
• AA’s purpose is recognized as a remedy for past discrimination, but Harvard’s admissions practices may no longer be remedial.
• AA should have an end point when it’s no longer necessary.
• Colleges and universities may be violating the 14^th Amendment, which says that no state should deny a person in its jurisdiction protection under the law by considering the race of some applicants and denying others protection in the process.
• Harvard may be violating Title VI of the Civil Rights Act of 1964 by “penalizing Asian-American applicants, engaging in ‘racial balancing,’ overemphasizing race, and rejecting workable race-neutral alternatives.”
• Asian SFFA students claim they’re rated lower in admissions criteria based on character traits. They feel that cultural traits such as kindness, integrity, courage, and empathy are held against them.
• Cameron Norris, the plaintiff’s attorney, argued that Harvard and UNC’s student body is “sufficiently diverse” with a 2021 freshman class whose racial breakdown was 19% white, 18.8% Hispanic, 40.7% Asian, and 3.7% Black.

Plaintiffs in both cases made one of the main focuses of the hearings the 14^th Amendment, which they argue eliminates all racial preferences.

Pro-Affirmative Action viewpoint

The universities presented these arguments to defend the use of AA:

• Lawyer Seth Waxman told the high court that if Harvard University would have a negative effect if it stopped considering race, among other criteria, in its admission decision. The result would reduce the Black student population by as much as 14%.
• Elizabeth Prelogar, the US solicitor general, pointed to California’s ban on using race in public institutions’ admission decisions to support her AA argument. She noted that racial diversity on the University of California (UC) campuses of Berkeley and UCLA has declined dramatically since race considerations on admissions were outlawed. However, she also noted that as progress continues in diversifying student bodies, AA will eventually have an endpoint.
• A middle-of-the-road stand on AA supports exhausting all “race-neutral” approaches to achieving a diverse student body before including race in admission decisions. But the universities and their supporters argued that currently, there are no race-neutral means of creating a diverse student body that works as well as AA.
• On campuses where AA isn’t practiced, African American, Hispanic, and Native American students are underrepresented and report feeling racially isolated.
• Harvard doesn’t intentionally discriminate against Asian applicants in its admission policies.

Court observers speculate that a conservative-leaning Supreme Court will likely strike down AA, but no one knows for sure.

So, what does this all mean for employers?

Business leaders weigh in

Workest asked business leaders how the high court’s decision may impact employers’ hiring and DEI programs and how effective AA has been. Here are their email responses.

Clarifying Affirmative Action from Diversity, Equity, and Inclusion

Mark Baugh, chief diversity and inclusion officer for Baker Donelson law firm, explained what he called misconceptions about AA and DEI.

“Hiring people from underrepresented groups has never deviated from a focus on looking at skills and credentials,” said Baugh.

He also clarified these misconceptions:

• The use of AA isn’t as prevalent among private employers as assumed.
• AA applies to federal contractors who meet specific criteria.
• Unlike AA, DEI focuses on enhancing workplace cultures and encourages hiring underrepresented groups without hiring mandates.

Baugh said that DEI initiatives are one way for employers to increase their competition for talent. These practices also create a good workplace.

Affirmative Action’s effectiveness

The debate over AA is not just about whether it’s fair but also whether it has been effective.

“Affirmative action is a weak band-aid for painful systemic issues that need to be resolved,” said Scott Lieberman, founder of TouchdownMoney. “Everyone, regardless of race, religion, color, physical disabilities, sexual orientation, cultural background, and so on, must have access to the tools to succeed. There needs to be a fair playing field. The truth is, this isn’t the case. When people feel they have equal opportunities, we’ll know we’ve advanced as a society.”

Baugh said that while Affirmative Action has been working, it hasn’t leveled the playing field.

“When people feel they have equal opportunities, we’ll know we’ve advanced as a society.”

“I think one of the things people miss about the effects of Affirmative Action is the impact that it has had on our greater society,” Baugh said. He added that AA has allowed women to make contributions in areas like science and academia. “We would have been farther behind without their inventions. Often affirmative action conversations only focus on race. Still, the assistance it has provided to women is often overlooked,” he said.

The impact of the court’s ruling

Amy Spurling, CEO/founder at Compt said that while she doesn’t think the ruling will have a direct impact on employers’ programs, she does think the impact could be indirect.

“We have had several years where companies have finally started focusing on DEIB [diversity, equity, inclusion, and belonging] and are even publishing their numbers and championing how they are going to get better,” said Spurling. “If the decision comes down against affirmative action, it could signal a shift in the tenor of this country and a movement away from supporting such things.”

Baugh noted that the court hearings are based on an education admission case, not an employment case. “While [the case] may have a broader effect outside of education, the impact to employees and for employers will be limited,” he said.

The takeaway

Baugh thinks the Supreme Court will side with the plaintiffs.

Lieberman thinks the court will likely rule against what it sees as racial preferences in college admissions. But he also thinks employers will continue supporting DEI regardless of the outcome.

“To grow your business, you need the top talent, and you need a workplace that feels motivating. DEI programs make it all possible,” said Lieberman.