On June 29, 2023, in two cases (SFFA v. Harvard and SFFA v. UNC, referred to here as “Harvard/UNC”), the U.S. Supreme Court held that Harvard University’s and the University of North Carolina’s race-conscious admissions policies violate the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause prohibits discrimination based on race.
The Supreme Court had previously held in prior cases that universities could use narrowly tailored “race-conscious” admissions policies when deciding whether to admit a student. In its decisions in Harvard/UNC, the Supreme Court acknowledged these prior cases and stated that it has permitted race-conscious college admissions as an exception to the Equal Protection Clause. This exception, however, has only been permitted with certain limits. For the exception to apply, a race-conscious admission program: 1) must satisfy strict scrutiny (i.e., a high-bar of judicial review), 2) cannot use race as a stereotype, and 3) has to end at some point. In Harvard/UNC, the Supreme Court held that Harvard’s and UNC’s admissions programs failed all three of the stated limits.
So did the Supreme Court strike down affirmative action in university admissions? The Supreme Court held that Harvard’s and UNC’s policies as drafted and implemented violate the Equal Protection Clause. It did not, however, say that all race-conscious admissions policies automatically violate the Equal Protection Clause. Instead, such programs must meet the limits required to allow an exception to the Equal Protection Clause. On the other hand, the Court’s decision outlines a high bar for being granted an exception under the Equal Protection Clause. As a result, it remains to be seen if an affirmative action admissions program can be created that is compliant with the Supreme Court’s recent decision.
First, UTD does not use race conscious admissions. The University of North Carolina and Harvard University both used race conscious admissions programs, and they will now have to reevaluate their admissions programs to comply with the Court’s decision. Similarly, other colleges and universities who have race conscious admissions policies and programs will also have to evaluate these programs and policies to ensure compliance. Since UTD does not have a race conscious admissions program, UTD will not have to undergo this same exercise. The full impact of this decision, however, on higher education remains to be seen and will take time to fully realize.
While UTD does not use a race conscious admission policy, it does have an affirmative action plan. Since UTD receives federal funds, it must comply with the regulatory obligations under Executive Order (EO) 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), and Section 503 of the Rehabilitation Act. Under these regulations, covered federal contractors and subcontractors must take affirmative actions to ensure that applicants are employed, and employees treated during employment, without regard to a protected characteristic. Therefore, UTD prepares an annual affirmative action plan to comply with its affirmative action obligations as a federal contractor.
No. Required federal contractor affirmative action involves working to promote equal opportunity in employment in the workforce. In alignment with these regulations and other applicable laws, favoring any race (or other protected status) over another is expressly prohibited. By contrast, in Harvard/UNC, the affirmative action admissions programs for Harvard and UNC specifically considered race as a factor when making admissions decisions.
For additional information, the Office of Federal Contract Compliance Programs (OFCCP) published an FAQ guidance addressing the differences between contractors’ affirmative action obligations and affirmative action in university admissions. One question in the FAQ asks, “Are the affirmative action obligations OFCCP enforces similar to the affirmative action steps taken by some educational institutions to increase the racial diversity of their student bodies?”
The OFCCP’s response reads:
“No. OFCCP enforces nondiscrimination and affirmative action obligations to ensure equal opportunity in the federal contractor workforce, while some post-secondary educational institutions have implemented a wholly distinct concept of affirmative action that permitted the use of race to be weighed as one factor among many in admissions processes. Further, the Supreme Court’s decision … applies only to higher education admissions programs and does not address the employment context … There continue to be lawful and appropriate ways to foster equitable and inclusive work environments and recruit qualified workers of all backgrounds. OFCCP’s affirmative action requirements enable employers to reduce the risk of discrimination in their workforces and recruit and retain diverse talent.”
Therefore, UTD will continue to meet its affirmative action obligations pursuant to EO 11246, VEVRAA, and Section 503.