In a 6-3 ruling, the U.S. Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College all but banned the use of race as a factor in college admissions. The majority opinion turned on the idea that race-based admissions violated the Equal Protection Clause of the U.S. Constitution. Twenty years ago, the court upheld the use of race as a factor in college admissions in Grutter v. Bollinger, 539 U.S. 203 (2003). Today's decision makes it clear that race may not play a role in admissions, whether directly or indirectly. In making this clear statement, the court signaled its intent to thwart expected efforts by universities to skirt the decision by using race proxies in admissions. Specifically, applicants will no longer be able to check a "race" box in the admissions process. They will, however, be able to discuss race in admissions essays.
Many critics and news agencies are touting this decision as signifying the beginning of the end for Affirmative Action, and many companies may be wondering what the decision means for their Affirmative Action policies. The fact of the matter is that this decision is not a decision on Affirmative Action and it will have no effect on government contractors' AA obligations. The schools at issue, Harvard and UNC, used race as a direct factor in selecting for admissions and as the court duly noted, "Both programs lack sufficiently focused and measured objectives...." Affirmative Action planning, as required of federal contractors, focuses on providing a pool of applicants for the hiring manager that mirrors the population in specific job groups in the recruiting area. It forbids the use of quotas or requirements to hire due to race.
The Office of Federal Contract Compliance Programs defines an affirmative action plan as an "obligation on the part of the contractor to take action to ensure applicants are employed, and employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran." While colleges and universities are no doubt struggling with how to modify their admissions policies, rest assured that private sector Affirmative Action obligations are untouched by today's decision.
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