US Supreme Court’s affirmative action ruling has implications beyond college admissions, says lawyer

As you may have seen in the news, back in June the US Supreme Court ruled that race can no longer be considered as a factor in university admissions. It’s a landmark ruling that overturns decades-old policies on so-called affirmative action and has huge significance for admissions policies and diversity programmes in the States. We’ll hear from a US attorney about that. 

As the BBC reports, affirmative action is one of the most contentious issues in US education. It first made its way into policy in the 1960s and has been defended as a measure to increase diversity.
US President Joe Biden said he "strongly" disagreed with the court’s ruling by nine justices who are ideologically split between six conservatives and three liberals. Former President Donald Trump praised the court’s decision, as did a number of other prominent Republicans.

The ruling covered two cases involving admissions at Harvard and the University of North Carolina. In a 6-3 decision, the Supreme Court held that race-based affirmative action in higher education violates the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Although the Court’s decision applies to universities governed by Title VI and not private employers governed by Title VII, commentators are saying it is possible that the ruling will have a ripple effect meaning companies could face questions from their boards, shareholders, and employees about any race-based decisions they make. That’s because the lower courts in the US have regularly borrowed from decisions construing Title VII in their consideration of Title VI cases and vice versa.

The impact of the decision on university admissions in the US is sweeping and immediate – universities are now barred from using race-based admission systems. So, let’s hear more about that. Earlier I caught up with US employment lawyer, Ben Stockman, who joined me by video-link from New York. I asked Ben what he made of the ruling:

Ben Stockman: “Well, not a surprise given the courts’ dicta and past precedent, particularly this court and its ideological focus. It's clear that affirmative action programmes were in its crosshairs for some time and I think the question was more when they would address the issue and potentially overturn prior precedent than if. So, I think the reaction has been largely along ideological lines. States that are controlled by Republican legislatures are quite enthusiastic about the decision and states that are controlled by Democratic legislatures are obviously taking the decision quite negatively. I think the concern from Democratic controlled states, and ideologically aligned states, is that this will have long term ramifications on diversity in the workforce because here in the United States the universities largely feed corporate America its workforce. So, those are the main concerns that are, as you have probably seen in the press, reported upon and, largely, those are the concerns that the folks who are running institutions of higher education are focused on now.”

Joe Glavina: “Universities are directly affected by this ruling Ben so what impact has this decision had on universities?” 

Ben Stockman: “So, I think the emphasis on diversity on campus remains the same and, anecdotally, many institutions have doubled down on their initiatives in public pronouncements in the wake of this decision. I think what is happening now is that institutions and, frankly, corporations as well because of the implications of this decision on the workplace, in addition to institutions of higher learning, are revisiting and re-examining their policies, practices, particularly with regard to diversity, equity and inclusion to ensure that they will meet the challenges that this new decision has laid out and, primarily, it's a higher standard that they're going to have to meet. They're going to have to show that these policies and practices and admission policies, in particular, are race neutral and there are certainly ways that institutions are focused on maintaining diverse campuses, perhaps shifting and tweaking policies and practices to comply with the court's mandates in the fair admissions case.”

Joe Glavina: “If we can just consider the wider implications of this ruling, Ben, because the case doesn’t directly impact on workplace diversity programmes, as I understand it, but it is reported over here that it could have an indirect impact - insofar as companies who are looking to hire graduates in the future - in that the graduate pool might start to drop, and also perhaps a nervousness around workplace diversity initiatives. Thoughts on that?”

Ben Stockman: “It's an interesting time in the US workplace. Companies are grappling with difficulties on a number of fronts, some related to regrouping after the pandemic and getting their workers into the workplace. This decision makes the work harder. Companies are having to revisit their policies, practices, particularly with regard to recruiting and determine how best are they going to achieve their diversity goals given that they cannot take race into account when hiring and I think what companies are largely looking at are recruiting. How are they recruiting? Where are they recruiting? Are they providing job training in the right geographic communities to bolster their diversity initiatives? So for example they have to revisit their policies made sure they're not relying unnecessarily on stereotypes, which the Supreme Court would call a focus on race, over more nuanced criteria such as socio-economic background, targeting marketing materials, for example, to specific trade publications that might have a higher percentage of folks from diverse backgrounds reading those materials. So, those are the types of efforts that I think are underway in the wake of this case to ensure that the pool of candidates that corporations are targeting for hires and recruiting will most accurately reflect America's racial diversity as it currently exists.”

Joe Glavina: “Anything else you’d like to add?”

Ben Stockman: “Yes, I think the reality is that our clients, corporations both large and small, by and large in the United States are committed to improving diversity in the workplace. Interestingly enough, in the wake of the decision there were more than a dozen Republican-controlled Attorney General's Offices that sent out a letter to the CEOs of Fortune 100 companies warning them and reminding them of their obligations to recruit in a race neutral manner. In response to that just about two dozen Attorney General's Offices in Democratic controlled states sent out their own letter reminding the CEOs of Fortune 100 companies that in fact there are federal laws already in place, such as Title VII of the Civil Rights Act of 1964, that prohibit race-based hiring and that promotion of diversity in the workplace is crucial to the success of those companies and that Republicans are simply trying to roll back the progress of the last 50 years here in the United States. So, all that to say, I think your average CEO of a company in United States is well aware of the benefits of a diverse workforce and is sophisticated enough to know that this is not a wiping away of the progress in the last 50 years, more so it is an opportunity to revisit and make sure that the programmes and practices that they have in place to recruit diverse workforces are properly targeted and calibrated to maximise success in recruitment.”

The UK’s press has covered this news extensively, including the BBC and the national newspapers. We have included links to several of them in the transcript of this programme.

LINKS
- Link to the Guardian’s report on the US Supreme Court’s ruling on affirmation action
- Link to the BBC’s report
- Link to FT’s report