Five Takeaways from the SCOTUS Oral Arguments on Affirmative Action

On October 31, the U.S. Supreme Court heard oral arguments in two pending cases involving university affirmative action admissions policies, Students for Fair Admissions (SFA) v. Harvard and SFA v. University of North Carolina. The five-hour oral arguments covered a broad range of issues in a very complicated and controversial area of the law. 

The legal issues in the cases arise under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Right Act and pertain exclusively to discrimination and the use of affirmative action policies in college admissions processes. However, employers are watching the cases closely as they could not only impact the pipeline of diverse candidates from college campuses, but also could signal the Court’s approach to employment discrimination under Title VII, which under current precedent already has a stricter framework for evaluating affirmative action policies in employment decisions (besides federal contractor obligations under Executive Order 11246).^[1] While the use of gender is not at issue in either case, corporate DEI policies with gender diversity goals could be similarly affected by their outcome. 

A decision is not expected until this spring—possibly as late as June—but there are at least five takeaways of interest to employers in the arguments. 

1. The untested new justices show no signs of parting company with their philosophical allies, foreshadowing a 6-3 ruling against the universities.
   
   Four new justices have been added to the nine member Court since its 5-4 decision in 2016 upholding the University of Texas’ affirmative action program—three conservatives (Neil Gorsuch, Brett Cavanaugh, Amy Coney Barrett) and one liberal (Ketanji Brown Jackson, who is recused from the Harvard case, but will participate in the UNC decision). The other justices split along philosophical lines in the Texas case and any hopes that the three new conservatives would differ with Roberts, Alito and Thomas seemed to be dispelled by their questioning during the arguments. The views of Kavanaugh and Barrett were least known, with Kavanaugh historically notably committed to increasing diversity among judicial clerkships and continuing to appear to make diversity-conscious hires for his own clerks.
   
   During the oral arguments, Kavanaugh zeroed in on what could be acceptable race-neutral paths to achieving a diverse student body. He noted the positive experience of certain states that have banned race-based admissions, achieving “significant numbers of minority students on campuses.” Kavanaugh and Barrett both also repeatedly cited Justice Sandra Day O’Connor’s 2003 opinion in a University of Michigan case predicting that affirmative action would no longer be needed in 25 years. Stating that O’Connor had found it to be “dangerous,” Barrett asked, “What if it continues to be difficult in another 25 years?”
   
   Justice Jackson countered that the universities were not setting numerical goals and that race was simply one among several factors being considered favorably. She observed that if factors such as residency and military service could be given “pluses,” the failure to consider race could “have the potential of causing more of an equal protection problem than it's actually solving.”
   
   
   
2. The value of racial diversity appears to hold little sway with the conservative majority.
   
   Like most employers with DE&I programs (as argued in HR Policy’s amicus curiae brief), Harvard and UNC strongly value a diverse student body. Even the plaintiff Students for Fair Admissions appeared to embrace this value while challenging the use of race as an influential factor in achieving it. Yet, the Court’s conservatives spoke very little about this value during the argument. Justice Thomas challenged it outright, stating “I don’t know what it means” and being unsatisfied with UNC’s response to his request for “a clear idea of exactly what the educational benefits of diversity” would be.
   
   Justice Barrett did note the value of diversity “writ large”—i.e., “not just racial diversity but having, you know, different genders, different religions, different viewpoints in the classroom because of the educational benefit of bringing different perspectives to bear on a question.” Justice Gorsuch noted disparagingly Harvard’s sordid use of diversity in the 1920s “as cover” to limit the number of Jewish students. He further asked: “[H]ow can you do diversity, which that's what you're arguing for, without taking account of numbers?”
   
   
3. The university affirmative action programs appear, on their face, to be more limited in scope than many employer DE&I programs.
   
   Many if not most universities—and employers—publicly tout the benefits of their racial diversity efforts and often use numerical goals in measuring them. (Federal contractors are required by law under Executive Order 11246 to establish numerical affirmative action goals reflecting the available workforce.) In contrast, the lawyers defending the universities’ practices bent over backwards to highlight the constricted limits under which they operate in using race as one of many factors to achieve their broader diversity goals.
   
   UNC’s attorney noted that it “would like nothing more than to achieve its educational aims through race-neutral means.” Illustrating the school’s holistic approach, he emphasized that it does not have “some sort of racial target or a target for other diversity metrics, for example. We don't say we want to have 10 percent of our class be military veterans. We say we value this diversity interest and we're going to look at each individual applicant on that basis.” He further noted that no applicants receive “bonus points” on any basis.
   
   Arguing for the universities, U.S. Solicitor General Elizabeth Prelogar observed: “The Court's precedents strike a careful balance. Race can be considered if truly necessary but only as one factor in a holistic admissions process that prioritizes and values diversity in all of its dimensions. The Court should adhere to that balance today.”
   
   Justice Alito outright questioned the use of diversity goals – general, specific, aspirational, or otherwise – in college admissions. He expressed concerns that the use of such specific goals itself necessitates unlawful methods to ensure they are being met. It is not difficult to see these concerns being paralleled in the employment context, where publicly available DE&I goals are an increasingly popular corporate practice to demonstrate commitments to DEI in general.
   
   
4. The outcome will likely move race-neutral approaches to the forefront, but even employers using those may need to be careful.
   
   Colleges in nine states—CA, AZ, FL, ID, MI, NE, NH, OK, and WA—already operate under a legal ban against race-conscious admissions practices. Most have used creative race-neutral approaches to achieving diversity goals with varying results.
   
   While not fully embracing racial diversity as a value, even the conservative justices acknowledged that a race-neutral approach could be employed in achieving it, with one potential caveat. Chief Justice Roberts asked the SFA attorney: “Do you think [race-neutral alternatives] are appropriate, even if the intent of the state in adopting them is to reach a certain level of minority students?” The attorney responded that efforts to achieve “socio-economic diversity” could be justified on “race-neutral means.” However: “If the only reason to adopt a particular admissions policy. . . was for racial diversity alone, we think that would probably raise problems under [existing] precedent, but, of course, it's a fact-intensive inquiry . . .”
   
   Justice Kavanaugh then posited a university developing “three race-neutral alternatives to consider in the wake of a decision here and they choose the one that's going to lead to the highest number of African-American students and they choose that race-neutral alternative for that reason.” The attorney cautiously responded: “[I]f they can demonstrate they would have—they would have pursued that policy anyway, I think it's sufficient for them to escape liability.”
   
   Justice Sotomayor pressed the attorney on that point: “But isn't that what this plan in UNC already does? Race is never the determinative factor. That was a finding by the district court. Race alone doesn't account for why someone's admitted or not admitted. There's always a confluence of reasons. There are any number of Hispanics, Blacks, Native Americans who are not chosen by schools.”
   
   Justice Kagan, one of the more liberal justices on the Court, herself acknowledged that if it was possible to achieve racial diversity through neutral mechanisms, that would be preferable to race-conscious ones.
   
   
5. Anti-affirmative action crusader Edward Blum has not (yet?) set his sights on employer affirmative action and DE&I initiatives.
   
   The Students for Fair Admissions, which claims to represent 20,000 students and their parents, is headed up by Edward Blum. Mr. Blum also is the director of the Project on Fair Representation, whose mission, according to its website, “is to facilitate pro bono legal representation to political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity. POFR will devote all of its efforts to influencing jurisprudence, public policy, and public attitudes regarding race and ethnicity in six arenas,” including employment.
   
   In addition to college admissions, the Project until now has primarily focused on voting rights issues (primarily redistricting) and has yet to bring any cases based on employment. However, in Greg Gegenheimer v. State Bar of Texas, it represented a plaintiff challenging a state law requiring the Bar to include four minority members on its board. (The lawsuit was mooted when the legislature revoked the law.)
   
   Thus far, the Project has focused on government actions and has shown no signs of targeting private sector DE&I programs. However, a challenge to EO 11246’s affirmative action requirements for federal contractors would seem to be an area of obvious interest. Meanwhile, it remains to be seen whether a Supreme Court decision against Harvard and UNC could foment new interest in challenging corporate DE&I programs.

^[1] Title VII explicitly prohibits using race (or similar protected classifications) in employment decisions. While Title VI caselaw currently allows for the narrowly tailored use of race in college admissions to achieve a diverse student body, there is no such allowance under Title VII precedent in the employment context. Under Title VII, race can only be used by employers to remedy past discrimination or address a manifest imbalance in traditionally segregated job categories, or to avoid disparate impact liability (i.e., liability for policies that are not intentionally discriminating, but have discriminatory results).