When Students for Fair Admissions filed lawsuits on the same day in 2014 challenging the undergraduate affirmative action admissions policies of Harvard College and the University of North Carolina at Chapel Hill, Brenda Shum and I committed to the Lawyers’ Committee for Civil Rights Under Law playing as large role as possible in defending affirmative action. Brenda, then the Director of the LC’s Educational Opportunities Project, and I worked with separate teams of co-counsel of nonprofits and law firms, to represent students and alumni in the two cases. We were successful in intervening as a party in the UNC case which gave us close to full participation. In the Harvard case, we lost our intervention motion but the district court granted us special amicus status that enabled us to participate in the motion for summary judgment stage, trial, and post-trial briefing. Later, we would have argument time on before the First Circuit. Because the Harvard and UNC plans were substantially similar to affirmative action plans the United States Supreme Court previously found constitutional, our side prevailed in the lower courts in both cases. Because our students were parties in the UNC case, the Supreme Court granted us oral argument time in the UNC case when the Supreme Court heard both cases on the same day in October 2022. David Hinojosa, Brenda’s successor, argued forcefully and thoughtfully that day. I was with David at counsel table.
As Chief Counsel, the degree of my involvement fluctuated during the course of the two cases compared to Brenda, David, Genevieve Bonadies Torres, and our co-counsel. But these cases were ones I have thought about a lot over the last decade and those thoughts and my experiences will likely be the subject of several Justice Blog posts. This first post related to the issue will be less about the case itself but about what has happened in its aftermath.
In February 2023, I started to think about the impact of an adverse decision in areas other than education in the belief our conservative friends would be attacking the use of race in a broad range of areas. So we started convening regularly, with the effort led by Dariely Rodriguez, Deputy Chief Counsel and Katy Youker, Director of the Economic Justice Project. In addition, David continued to lead on the issues related to education and Nancy Anderson, the Director of Pro Bono, played a key role in designing a pro bono assistance program.
So when the Supreme Court all but overruled its affirmative action precedents in SFFA v. Harvard (the two cases were consolidated) in June 2023, we were prepared for the attack on racial equity initiatives that has occurred in its aftermath. In my view, there were two things that we appreciated but did not fully appreciate: the breadth of racial justice initiatives and the degree to which some entities would abandon or weaken their own initiatives. Regarding the latter, lawyers, even well-meaning ones, have contributed to the problem by sometimes advising their clients to take the most litigation-averse route.
A good deal of effort has been expended by some of us to conduct education on the legal impact of SFFA v. Harvard and how racial equity initiatives can be implemented legally. There is little here I and others have not said before but Justice Blog provides me an opportunity to make these points in another forum. I am going to speak in relatively broad strokes here because there remain a number of unresolved issues and specific situations sometimes require a close look at the details. The below analysis reflects my understanding of the current legal standards, as opposed to my view of whether the courts have interpreted the relevant constitutional and statutory provisions correctly. If you would like to talk about specific situations, please feel free to contact me at jgreenbaum@justicels.com.
SFFA v. Harvard did not change the law other than with respect to school admissions
As much as the decision has propelled a series of attacks on racial equity programs and led some to modify or eliminate those programs, it really only applies to the specialized context of school admissions. Since the Supreme Court’s decision in Regents of the University of California v. Bakke (1978), schools could consider race in admissions under limited circumstances that applied only to the educational context. In Bakke, the Court found by a 5-4 vote that a special admissions process for members of a “minority group” for applications to the University of California at Davis Medical School violated the Equal Protection Clause of the United States Constitution. In actuality, Bakke was a 4-4-1 decision. Four justices took the position that the UC Davis program was constitutional. Four took the position that race could never be considered in school admissions. The deciding vote was Justice Powell and his opinion, to a significant extent, was the law for forty-five years. Justice Powell found that because some students were treated differently because of their race, this constituted a racial classification that was only permissible if the practice was necessary to achieve a compelling interest. Justice Powell examined a number of the school’s interests to determine whether they were compelling, and he found that one met the standard — the compelling interests schools had in diversity, not limited to racial diversity, but diversity in all respects. He then looked at whether the UC Davis’s special admissions program was necessary to achieve that interest and found that it was not because there were “less restrictive” alternatives available. He found such an alternative at Harvard, where race or ethnic background could be considered a plus but all students would be compared to one another and other diverse characteristics could also be considered a plus. The Court’s refined its jurisprudence in the cases between Bakke and SFFA v. Harvard and school admissions policies became more refined as well, but Justice Powell’s opinion and the Harvard admissions policy provided the basic framework.
The reason why SFFA v. Harvard did not change the law with respect outside of school admissions is that it is the only context in which the Court has found that diversity is a compelling interest that could justify a racial classification. For example, it has been the case for decades that most employers cannot consider a person’s race in hiring, promotion, or termination absent special circumstances, usually being to remedy the employer’s past discrimination.
There are circumstances where existing racial equity programs violate the current law but, outside the school admissions context, that would have been true pre-SFFA v. Harvard. The difference now is that conservatives are seeking such programs out and filing suit.
There is one statement in the SFFA v. Harvard decision that is helpful for racial justice advocates: At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
In my view, this means that school admissions officers, employers, grantmakers, service providers, et cetera can consider an individual’s experiences, including their experiences as a person of color, in making decisions. They just cannot make decisions based on a person’s race or ethnicity. Though I probably will never know, I would like to think the students’ involvement as parties may have made the difference here. We emphasized that, for some students, their race or ethnicity was essential to their life experience, and even provided an example of what the application essay of one client would look like if we redacted references to her ethnicity, which were about half of her essay.
Private parties have more latitude to advance racial equity efforts than the government
Governmental entities are subject to the Equal Protection Clause of the Constitution (Fifth Amendment for the federal government, Fourteenth Amendment for state and local government). The Equal Protection Clause prohibits intentional discrimination by a governmental actor. Examples like the UC Davis special admissions program in Bakke constitute intentional discrimination according to the law because applicants where treated differently because of their race and the special admissions program was not necessary.
Nongovernmental entities are not subject to the Equal Protection Clause or similar provisions unless they are standing in the shoes of the government or there is a statute prohibiting certain conduct.
There are some notable statutes. In SFFA v. Harvard, Harvardwas held to the same standard as UNC because Harvard is a recipient of federal funds. As a result, Harvard is subject to the Title VI of the Civil Rights Act of 1964, which the Court has said parallels the Equal Protection Clause. In addition, most nongovernmental employers cannot consider race in employment decisions because of Title VII of the Civil Rights Act of 1964.
Most of the post-SFFA v. Harvard litigation has been brought by white people backed by conservative activists utilizing a Reconstruction-era statute designed to enable Black people to have the same rights to contract as white people. 42 U.S.C. § 1981(a) states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Yes, it seems completely wrong that a statute designed to help Black people is being used by white people to challenge racial equity programs. This is a point we have tried to make, including in this brief from American Alliance for Equal Rights v. Fearless Fund Management. The Fearless Fund case concerns a 42 U.S.C. § 1981 challenge to a program that awards a $20,000 grant once a quarter to a Black female entrepreneur. I am going to discuss 42 U.S.C. § 1981 and the Fearless Fund case more below.
The point of this section is that the default should be that a nongovernmental program that advances race should be presumed legal unless there is a statute (or state constitutional provision that applies to nongovernmental actors) that says otherwise.
Racial equity initiatives that do not treat individuals differently because of their race will be lawful in most circumstances
I have made this the third point but this may be the most important point — in most cases, racial equity initiatives that do not treat individuals differently because of their race will be lawful. I recognize that there are instances when it is critically important for a racial equity initiative to focus specifically on advancing individuals of a particular race. But a lot of times that is not the case. Here are some examples.
- Initiatives designed at supporting communities of color or people from particular geographic communities
If a funder creates a grants program to organizations supporting the Black community and makes funding decisions on how effectively organizations work in the Black community, that would be acceptable. It would also be acceptable to target grants or service activities in a particular zip code, neighborhood, city, etc. In the Fearless Fund argument before the Eleventh Circuit, the plaintiff’s counsel acknowledged that if the quarterly grant was given to an entrepreneur for her support of the Black community but entrepreneurs of all races were eligible, his client would have no Section 1981 challenge.
- Initiatives designed to change racial composition but do not treat individuals differently because of their race
This issue is more divided but the current state of the law is that this is acceptable. Coalition for TJ v. Fairfax County School Board involved a challenge to the admissions plan for the Thomas Jefferson High School for Science & Technology, a selective magnet school in Fairfax County, Virginia. The Board changed its admissions policy to create a more diverse student body in numerous respects, including more Black and Latino students, but did it by race-neutral means to the point that evaluators did not know the race of the applicants they were evaluating. After the district court found this policy violated the Fourteenth Amendment, the Fourth Circuit Court of Appeals reversed and found in favor of the school district on a number of grounds. One ground was that the policy did not treat individual students differently because of their race while seeking the goal of increased racial diversity: “To the extent the Board may have adopted the challenged admissions policy out of a desire to increase the rates of Black and Hispanic student enrollment at TJ — that is, to improve racial diversity and inclusion by way of race-neutral measures — it was utilizing a practice that the Supreme Court has consistently declined to find constitutionally suspect.” The plaintiffs sought Supreme Court review. The Supreme Court denied review without explanation with Justices Alito and Thomas dissenting (it takes four justices to grant review).
- Initiatives designed to help individuals from certain racial/ethnic groups but equally open to all
One of the weaker cases brought by conservative activists post-SFFA v. Harvard was a challenge to an undergraduate internship program of the Smithsonian’s National Museum of the American Latino. The lawsuit was weak because the Museum submitted evidence demonstrating that it did not consider the race or ethnicity of applicants. The case ended up “settling” with the Museum reaffirming that it would not consider the race or ethnicity of its applicants and that internship was open to all applicants.
What is notable is that the Museum’s website continues to make clear that the internship remains focused on providing a career pathway to Latinos. Here is the first paragraph explaining the internship:
The Latino Museum Studies Program (LMSP) Undergraduate Internship is a museum career pathway program designed to increase hands-on training opportunities for Latina, Latino, and Latinx-identifying undergraduate students interested in art museum careers. The program focuses in non-curatorial museum roles including the areas of conservation, museum education, interpretation, digital culture, collections management, and exhibition design, fabrication and production. With generous support from the Mellon Foundation, the National Museum of the American Latino has partnered with the National Gallery of Art and select universities to diversify opportunities in museum studies and practice. The program seeks to catalyze change in a field where only 5% of key museum positions are filled by people who identify as Latina, Latino, or Latinx.
The Museum can maintain the same intent for the internship and market it the same way as long as it makes clear that race or ethnicity is not a factor in eligibility or selection.
- Initiatives designed to help socially disadvantaged people or victims of discrimination
These initiatives should be legally acceptable provided that an individual does not receive an advantage or disadvantage because they are from a particular race or ethnicity even if people from particular races or ethnicities are more likely to meet the eligibility requirements.
These above examples affirm that under the current state of the federal law programs designed to promote racial equity will typically be okay as long as they do not determine eligibility or selection based on a person’s race.
42 U.S.C. § 1981 and the Fearless Fund case
Of the recent challenges brought by white applicants under 42 U.S.C. § 1981, the Fearless Fund is the one that has garnered the most attention, in part because it has moved more quickly than the others — a panel of the Eleventh Circuit heard oral argument in January 2024 and we are awaiting a decision. I discussed a couple of points about 42 U.S.C. § 1981/the Fearless Fund case above. Here are a couple more:
- 42 U.S.C. § 1981 involves the denial of the opportunity to contract. What does that mean in the context of philanthropy? Many gifts do not involve a contract. If I write a check to a charity with no strings attached, there is no contract and hence no Section 1981 claim. In the Fearless Fund case, the district court found that there was a contract because the “contestants relinquish rights to the [Fearless Fund] that amount to detriments.” The determination of whether a donation involves a contract is likely to be fact-specific and it is not difficult to see how different judges may view this issue differently.
- The First Amendment defense. One of the primary defenses of the Fearless Fund is that their contest and the grant award is expressive conduct protected by the First Amendment which, as a constitutional protection, supersedes Section 1981 as a statute. In the Fearless Fund case, the district court denied the plaintiff preliminary relief on First Amendment grounds, stating that the Fearless Fund clearly intended to convey through its contest the expressive message about the importance of Black women-owned businesses to the economy. This defense could be successful as it seems consistent with the successful defense in the 2023 Supreme Court decision in 303 Creative v. Elenis. In 303 Creative, the Supreme Court held that a wedding website designer could refuse to build a website for single-sex couples on First Amendment freedom of expression grounds though it violated Colorado’s public accommodations statute. Some of us that disagree with the 303 Creative decision are uneasy with this First Amendment defense to Section 1981 claims.
Some additional observations regarding diversity, equity, and inclusion efforts
- Under current legal standards, employers can do a lot to promote diversity, equity, and inclusion. This can include providing targeted recruiting outreach focused on candidates of color; maintaining applicant and employee race data; and even setting diversity goals. When it is appropriate to a job, employers can require experience working in communities of color. Where employers can get into trouble is when they treat job applicants or employees differently because of their race. In a recent decision affirming a jury determination that a health-care executive was fired because his race and gender during an organizational effort to increase racial and gender diversity, the Fourth Circuit stated that “employers may, if they so choose, utilize D&I-type programs. What they cannot do is take adverse employment actions against employees based on their race or gender to implement such a program.”
- There have been recent efforts in some states to prevent employers from conducting trainings on DEI-related issues such as unconscious bias. Some of these laws go too far legally. Florida enacted one such law, known as the Stop W.O.K.E. Act, which stated that employers could not compel employees to participate in any training or activity that advocated for eight listed concepts, all of which concern race, color, sex, or national origin, and are considered liberal beliefs. The Eleventh Circuit, with two conservative judges on the three-judge panel, unanimously found that the law violated the First Amendment as viewpoint-discrimination.
Final thoughts
The decision in SFFA v. Harvard was a painful blow and the resulting large-scale attack on certain racial equity initiatives has had an impact. That being said, I believe a lot can be done to advance racial equity under the current state of the law with nongovernmental actors having more latitude than the government. It does require careful thought and a commitment to racial equity that supersedes the reflex to retreat.