The Supreme Court decided two companion landmark cases in June 2023, Students for Fair Admissions, Inc. (“SFFA”) v. President and Fellows of Harvard College and SFFA v. University of North Carolina et al., wherein they ruled that race can no longer be considered in the college admissions process. More specifically, the Court held that the schools’ policies which allowed race to be considered in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. The Court stated, “[T]he Harvard and UNC admissions programs… lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”
The Court’s decision was specifically limited to affirmative action in admissions processes in higher education and the legality of same under Title VI and the Fourteenth Amendment. Affirmative action in the employment context is different and strictly prohibited pursuant to Title VII of the Civil Rights Act, which is the governing law for employment matters (the Fourteenth Amendment does not apply to private employers). As such, the decision does not require employers to take any action and/or to make changes to their Diversity, Equity and Inclusion (DEI) initiatives, hiring processes, etc. assuming those already comply with relevant employment laws. However, there are potential practical implications for employers.
While the Harvard and UNC decisions do not change anything from a legal perspective for employers, they do increase the potential for reverse discrimination cases and claims challenging corporate DEI programs. Over the past few years there have been such challenges at the state and federal level, such as Florida’s Stop Woke Act and The White House’s September 2020 memo that terminated federal agencies’ diversity training that included critical race theory or referred to White privilege (later revoked by President Biden). There has also been an increase in “reverse” discrimination cases, as well as challenges to corporate DEI programs. Beyond these legal implications there has been a lot of attention from a social media perspective on what organizations are doing from a DEI perspective. As such, it is important to keep in mind not just the potential legal challenges and claims, but public and employee perception as well. This is a good time for employers to review their DEI programs and consult with counsel to ensure they comply with the law and are appropriate for the stated goals.
While it may take time for the Supreme Court’s rulings against Harvard and UNC to impact colleges and universities from a litigation standpoint, we have already seen the recent case against the U.S. Military Academy at West Point challenging the race-conscious admissions policies. In addition, we do believe that there will be future lawsuits against other colleges and universities relating to admissions practices. For this reason, it is important from a risk management standpoint for colleges and universities to modify their admissions practices as necessary to comply with the Supreme Court’s rulings. In addition, to be prepared in case your college or university is sued because of its admissions practices, a review of the organization’s educators legal liability/directors & officers liability program should be conducted to be certain that there is protection for such lawsuit. Some of the key features that should be considered in the review include:
Also, because the Supreme Court’s decision is still new, it may be advantageous for you to discuss the Rulings with your insurer for clarity on how their policy may respond to an admissions claim and also to determine if the rulings will change their underwriting going forward.
Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed entities, including Willis Towers Watson Northeast, Inc. (in the United States) and Willis Canada Inc. (in Canada).
