The Supreme Court’s Sea Change in Race-Conscious Decision Making: New Rules for College and Universities and Harbingers for Business
July 17, 2023
On June 29, 2023, the Supreme Court decided two watershed cases addressing the consideration of race in college admissions. In the single opinion resolving two cases, the Court held that the admissions programs of both Harvard College and the University of North Carolina violated the Equal Protection Clause by “mak[ing] admissions decisions that turn on an applicant’s race.” See Students for Fair Admissions v. University of North Carolina et al. and Students for Fair Admissions v. President & Fellows of Harvard College (“SFFA”).
Our DE&I and Affirmative Action Task Force, which has been actively engaged in this area in recent months, addressed the Court’s application of “strict scrutiny” in the opinion – which departs radically from the approach that had controlled for two decades – in our initial June 29 summary of the decision and client webinar held on July 11.
In today’s advisory piece, we provide a more comprehensive review of the legal framework for assessing the use of race in higher education admissions decisions before and after SFFA. We then consider the immediate impact of the decision on higher education admissions programs and the potential implications for private employers.
The key takeaway is this: pathways for implementing diversity, equity, and inclusion practices in college admission and business settings remain, but they will require thoughtful review to ensure compliance with evolving legal standards.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Apalla U. Chopra, an O’Melveny partner licensed to practice law in California, Tristan Morales, an O’Melveny partner licensed to practice law in the District of Columbia and California, Aparna B. Joshi, an O’Melveny partner licensed to practice law in the District of Columbia and Illinois, Michael Dreeben, an O’Melveny partner licensed to practice law in the District of Columbia, Jennifer Sokoler, an O’Melveny counsel licensed to practice law in New York, Marni Robinow, an O’Melveny counsel licensed to practice law in California, and David Cohen, an O’Melveny counsel licensed to practice law in New York, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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