Offical Seal of the United States Supreme CourtLast Monday, the U.S. Supreme Court heard (in an extraordinary session) almost five hours of oral argument in back-to-back cases challenging university admission policies relying in part on the race, ethnicity, and national origin of the candidates. (The Justices took only a 10-minute lunch and bio-break between the two cases!)

The two cases separately challenged the undergraduate admissions practices and policies of the University of North Carolina and those of Harvard University as unlawfully discriminatory based on race (Whites as victims) and ethnicity (Asians as victims). You may both listen to the oral arguments and obtain written transcripts of the legal arguments in the UNC case here and in the Harvard case here.

Almost immediately after the last word in the Harvard case (that the SCOTUS heard second in order), we began to receive the first of what became a steady stream of e-mails and telephone calls in the following days from lawyers and diversity and compliance officials in companies and institutions of higher learning across the country. Bloggers followed. They were all worried that the coming SCOTUS decisions (likely to be handed down next Spring) in the UNC and Harvard cases would spell the end of “affirmative action.”

It is true the advocacy for both UNC and Harvard was very surprisingly quite poor. The arguments of the universities were in such disarray that Justice Sotomayor, remarkably, was moved to repeatedly use her limited and valuable question time to seek to rehabilitate the arguments of the lawyers representing UNC and Harvard both to:

  1. lecture them as to how to better frame their arguments, and
  2. draw out of the UNC/Harvard lawyers more complete answers to the questions of other Justices which the UNC/Harvard advocates either had left unanswered, or had answered poorly (muffed/fumbled), or had left garbled. Justice Sotomayor was forced to abandon her primary role as a Supreme Court Justice hearing oral argument to ask questions to complete her understanding of the case. Rather Justice Sotomayor soon began to use her time to behave more like an experienced trial lawyer on redirect examination trying to rehabilitate one of her witnesses who had gotten slammed on cross-examination by the other side. It became a rescue mission for the Justice as she sought to reset prior answers through leading questions and explanatory speeches to pull out better answers from the UNC/Harvard advocates for her colleagues on the U.S. Supreme Court Bench and for the listening public.

However, it would be a large mistake to imagine or fear that the coming adverse decisions in the UNC and Harvard cases will spell the end of “affirmative action.” Here are the three reasons why the coming UNC and Harvard case decisions will not sink “affirmative action” despite the very difficult day the UNC and Harvard advocates suffered last week:

1. The UNC and Harvard Cases are Not “Affirmative Action” Cases

Rather, both the UNC and Harvard cases are discrimination law cases in which the trial courts (both of which ruled in favor of the universities) found as a fact, respectively, (as did the expert witnesses of both universities) that both schools preferentially based undergraduate admission decisions on race (favoring Blacks), ethnicity (favoring Hispanics) and national origin (favoring Native American Indians) at the expense of Whites and Asians.

The legal question in both cases is thus not an “affirmative action” question, but rather whether the acknowledged discrimination based on these three Protected Statuses in which both universities engaged is nonetheless “lawful discrimination.”

Said another way, discrimination law does not care whether a school discriminated based on a Protected Status (race, ethnicity, gender, national origin). Rather, discrimination law concerns itself with the question whether the acknowledged discrimination based on a Protected Status is “unlawful” discrimination, perhaps allowed as a matter of law via an “affirmative legal defense.”

For example, higher education admission case decisions have for the last 44 years (since the SCOTUS’ 1978 Bakke decision and more recently in the SCOTUS’ 2003 Grutter decision) UNIQUELY allowed universities and colleges to discriminate lawfully solely in the interest of diversity if:

  1. they can show the proper factual “predicate” unique unto institutions of higher learning the Court has outlined, and
  2. an institution of higher learning chooses to discriminate in admissions based on race, and/or ethnicity, and/or national origin, and/or gender.

While there is no central or even agreed-upon legal let alone homogenous definition of “Affirmative Action” in the United States (even while there are administrative Rules cataloging specific actions which constitute “Affirmative Action”), there is common agreement nationwide within the “Affirmative Action community” that “Affirmative Action” does NOT involve making unlawful discriminatory decisions based on a Protected Status.

Most people in the Affirmative Action community define “Affirmative Action” to mean the very OPPOSITE of unlawful discrimination: to take proactive “positive steps” to ensure that discrimination made unlawful DOES NOT OCCUR. “Affirmative Action” is thus the antithesis of unlawful discrimination in that “Affirmative Action” seeks to prevent and stop unlawful discrimination from occurring before it occurs.  While I do not think it is the case that UNC and Harvard have selfishly seized on the benign term “Affirmative Action” to describe and cloak their discriminatory admission practices, what they do is NOTHING like what the Affirmative Action community across the country does as to employment or in other social programs trying to assist those suffering disadvantage in whatever field of endeavor.

Words matter, and the language UNC and Harvard have unilaterally chosen to describe their discriminatory selection practices is not “Affirmative Action” as the rest of the country practices it. UNC’s and Harvard’s selection practices are out-and-out discriminatory practices. Now it is for the SCOTUS to tell us whether it is “lawful” discrimination, or not. But, the at-issue practices are NOT “Affirmative Action” practices. Far from it.

For example, the Office of Federal Contract Compliance Programs (“OFCCP”) is the federal agency within the U.S. Department of Labor, of course, which enforces Executive Order 11246 and its implementing Rules. OFCCP’s Rules require covered federal Government contractors to engage in “Affirmative Action” and to annually develop “Affirmative Action Plans” at each of the company’s establishments within the United States.

OFCCP is the center of the Affirmative Action community within the United States. Here is how OFCCP informally defines “Affirmative Action” in the Frequently Asked Questions section of its website:

“How does OFCCP define federal contractor affirmative action obligations?

Affirmative action is defined by OFCCP regulations as the obligation on the part of the contractor to take action to ensure that 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. (emphases added) See 41 CFR 60-1.460-300.5, and 60-741.5. The regulations state that the affirmative action obligation reaches all terms, conditions, and privileges of employment, including recruitment, promotion, termination, and compensation.”

So, OFCCP’s form of “Affirmative Action” is to require federal contractors to affirmatively “ensure” that unlawful discrimination does NOT OCCUR in employment. The notion is to proactively stop it before it starts. OFCCP’s Executive Order 11246 requirements thus proceed without preferences…i.e., “… without regard to [an applicants’ or employees’] race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.”

Indeed, OFCCP’s further FAQs specially distinguish OFCCP’s “Affirmative Action” compliance requirements from the kind of discrimination in which UNC and Harvard engage:

“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?

No. While OFCCP seeks to increase the diversity of the federal contractor workforce through the variety of affirmative action obligations described above, the obligations it enforces are wholly distinct from the concept of affirmative action as implemented by some post-secondary educational institutions in their admissions processes. In contrast to the affirmative action implemented by many post-secondary institutions, OFCCP does not permit the use of race to be weighed as one factor among many in an individual’s application when rendering hiring, employment, or personnel decisions, as racial preferences of any kind are prohibited under the authorities administered by OFCCP. See 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). OFCCP, therefore, does not permit the use of race as a factor in contractors’ employment practices to achieve diversity in the workforce, either by using race as one factor among many to achieve a “critical mass” of representation for underrepresented minorities or through direct numerical quotas or set-asides. See, e.g., Fisher v. University of Texas, 136 S. Ct. 2198, 2214-15 (2016); Grutter v. Bollinger, 539 U.S. 306, 330-31 (2003); Regents of University of California v. Bakke, 438 U.S. 265, 324 (1978). OFCCP’s affirmative action regulations expressly forbid the use of quotas or set asides, provide no legal justification for a contractor to extend preferences on the basis of a protected status, and do not supersede merit selection principles. See 41 CFR 2.16(e).”

The OFCCP Rule its FAQs reference, 41 CFR Section 2.16, (written and implemented in 2000 when Shirley Wilcher was OFCCP’s Director during the Clinton Administration and lightly edited in 2014 when Pat Shiu was OFCCP’s Director during the Obama Administration), is worth reciting in its entirety. OFCCP’s Rule makes explicit that OFCCP “Affirmative Action” “Goals” neither authorize race-conscious decision-making nor tolerate discriminatory preferences based on a Protected Status in stark distinction to the discriminatory selection processes UNC and Harvard have been implementing:

“41 CFR § 60-2.16 Placement goals.

  1. Purpose: Placement goals serve as objectives or targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affirmative action program work. Placement goals also are used to measure progress toward achieving equal employment opportunity.
  2. A contractor’s determination under § 60-2.15 that a placement goal is required constitutes neither a finding nor an admission of discrimination.
  3. Where, pursuant to § 60-2.15, a contractor is required to establish a placement goal for a particular job group, the contractor must establish a percentage annual placement goal at least equal to the availability figure derived for women or minorities, as appropriate, for that job group.
  4. The placement goal-setting process described above contemplates that contractors will, where required, establish a single goal for all minorities. In the event of a substantial disparity in the utilization of a particular minority group or in the utilization of men or women of a particular minority group, a contractor may be required to establish separate goals for those groups.
  5. In establishing placement goals, the following principles also apply:
    1. Placement goals may not be rigid and inflexible quotas, which must be met, nor are they to be considered as either a ceiling or a floor for the employment of particular groups. Quotas are expressly forbidden.
    2. In all employment decisions, the contractor must make selections in a nondiscriminatory manner. Placement goals do not provide the contractor with a justification to extend a preference to any individual, select an individual, or adversely affect an individual’s employment status, on the basis of that person’s race, color, religion, sex, sexual orientation, gender identity, or national origin.
    3. Placement goals do not create set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
    4. Placement goals may not be used to supersede merit selection principles. Affirmative action programs prescribed by the regulations in this part do not require a contractor to hire a person who lacks qualifications to perform the job successfully or hire a less qualified person in preference to a more qualified one.
  6. A contractor extending a publicly announced preference for American Indians as is authorized in 41 CFR 60-1.5(a)(6) may reflect in its placement goals the permissive employment preference for American Indians living on or near an Indian reservation.

[65 FR 68042, Nov. 13, 2000, as amended at 79 FR 72995, Dec. 9, 2014]”

Without defining “Affirmative Action,” for example, the SCOTUS has nonetheless previously acknowledged that the Congress had distinguished nondiscrimination prohibitions from “affirmative action” requirements in an earlier (coincidentally) university case known as Southeastern Commun. Coll. v. Davis,  442 U.S. 397, 407-412 (1979). (The Davis case involved claims of unlawful employment discrimination and of failed disability accommodation under two laws applicable to the states: Section 504 of the Rehabilitation Act of 1973 and the Fourteenth Amendment to the United States Constitution.)

So, adverse decisions from the SCOTUS in the UNC and Harvard cases finding that one or both Universities unlawfully discriminated against Whites and/or Asians, if that is what occurs, will not leach over and limit “Affirmative Action” as the rest of the country practices it and implements the concept of Affirmative Action.

The SCOTUS has no “Affirmative Action” issues before it in the UNC and Harvard cases. People who discuss or write about the UNC and Harvard cases as “Affirmative Action” cases either have bought the semantic head fake of UNC and Harvard or demonstrate their lack of knowledge about discrimination law, and these cases, and confuse two very different legal concepts.

The UNC and Harvard cases are very simply race, ethnicity, and national origin unlawful discrimination cases and are not “Affirmative Action” cases. The SCOTUS will understand UNC’s and Harvard’s attempted public relations language shift driven by being cornered in illuminating litigation. And, I predict, the SCOTUS will not “throw the baby out with the bathwater.”

2. OFCCP’s Affirmative Action “Goals” are Not “Quotas” or Preferences and Neither Permit Nor Provoke Race, Ethnic or National Origin Discrimination

The UNC and Harvard cases concern acknowledged discriminatory admission decisions to admit students to the undergraduate curriculum based, in part, on their race (Black), ethnicity (Hispanic origin) and national origin (Native American ancestry). It is important to understand that neither university relied on quotas or even numerical targets to achieve “diversity.” UNC, for example, considered race, ethnicity and national origin as one of 40 different admission criteria, no one of which was determinative.

Rather, both universities used what I will call a “bouillabaisse” admission recipe. Note: Only being a little bit discriminatory does not exonerate the universities if their use of race, ethnicity and national origin in decision-making is otherwise unlawful. For example, it is not helpful to employers in pregnancy discrimination cases to argue that the decision not to hire or not to promote was only based 40% on the fact that the candidate was pregnant.

The centerpiece of OFCCP’s “Affirmative Action” Plans for Minorities and Women is to calculate their availability for a particular job in the marketplace. Covered federal Government contractors then compare the employment percentage of Minorities and Women in the at-issue job against those calculated to be available for that job. If the federal contractor discovers that it employs fewer Minorities or Women than one would reasonably expect in the job given their availability, the contractor must then establish a percentage “Goal” for the job EQUAL TO THE CALCULATED AVAILABILITY.

OFCCP “Goals” are thus NOT percentage targets a federal contractor must hire against or a REMEDIAL NUMERIC LEVELING TOOL. Rather, “Goals” help corporate recruiters (not hiring managers) know when they have recruited a sufficiently diverse pool of candidates “to the front door” of the corporation approximately equal to the availability of minorities and women the company has calculated to be in the marketplace, available and at least minimally qualified to be employed in the job in question. No OFCCP “Goal” is a hiring target at which percentage the federal Contractor must hire. Nor does an OFCCP Rule-driven “Goal” create a preference or numeric quota for hiring.

Justice Tobriner’s dissent in the Supreme Court of California’s case decision when the Bakke case passed through its halls en route eventually to the SCOTUS also cited to the use of “Goals” as a benign  “Affirmative Action” tool for recruiters distinct from discrimination law’s prohibition of preferential quotas:

“FN 17. Professor O’Neill has written: “The distinction between a goal and a quota can be simply stated. … [A] goal simply declares an objective which will be met only if a sufficient number of qualified applicants apply, while a quota specifies the number to be admitted from a given group regardless of the pool of qualified applicants.” (O’Neill, Discriminating Against Discrimination (1975) p. 68.)”

Significantly, too, once the job candidates flock to the federal contractor’s front door, the company and OFCCP investigators can then determine whether unlawful discrimination has occurred in the selection and rejection of employees from this diverse pool of candidates the Affirmation Action Plan has helped identify to be available for employment.

Analogy: So an OFCCP “Affirmative Action Goal” operates like a tool to inform a sheepherder (think recruiter) as to how many sheep (think candidates for hire) the sheepherder should find, gather and drive to the barn door (think front door of a corporation hiring employees) for next step consideration (think hiring or rejection). Once the recruiters have done their job to drive candidates forward to apply for employment in numbers and percentages approximating their representation in the marketplace, the non-discrimination prohibitions of Executive Order 11246, Title VII and (in the case of state employers) the Fourteenth Amendment to the U.S. Constitution then attach and apply to the selection/rejection decisions with NO REFERENCE or concern about the recruitment “Goal” the Affirmative Action Plan generated.

Indeed, OFCCP has published letters in every administration going back to the advent of the Goals concept in 1972 (in the Nixon Administration) explaining that selection for hire (or promotion) is independent of Goals. In fact those letters explain that a federal contractor may hire exclusively White males if they are the better qualified candidates AND even if the federal contractor has a “Goal” in place at that time for the job in question. Goals are neither a preference nor an excuse or authorization to hire to the percentage or to hire based on a Protected Status.

Moreover, OFCCP Rules flatly prohibit the kind of preferential decision-making based on race, based on ethnicity and based on national origin in which UNC and Harvard engaged as you saw above in 41 CFR § 60-2.16 Placement goals.

So, the hard reality is that OFCCP’s Affirmative Action “Goals” do not force or even allow the kind of race, ethnic and national origin-based discriminatory preferences in employment like the discriminatory admission preferences UNC and Harvard undertake each school year. Rather, the UNC and Harvard admission selections are purposely based, in part, on considerations of race, ethnicity and national origin.

OFCCP’s recruitment Goals and other “Affirmative Action” compliance requirements, individually, and as a whole, DO NOT FORCE OR ALLOW selections based on race, ethnicity and national origin. Apples and oranges.

Oranges to Apples graphics

3. No SCOTUS Justice Seemed Opposed To “Remediation” as a “Predicate” To Justify UNC’s and Harvard’s Discriminatory Admission Practices, So Existing Preference Discrimination Law Under Title VII and Executive Order 11246 Is Unscathed

The Bad News For UNC & Harvard

To the utter dismay of Justice Sotomayor, the three university advocates (the two for UNC and the one for Harvard) refused to allow her to rehabilitate their prior answers to “the remediation question.” Several of the Justices dubious of UNC’s and Harvard’s discriminatory admission practices had asked early on during the Hearing whether the reason the schools discriminated in their admission practices was to allow them to remedy (i.e., “remediate”) any prior history at the schools of discrimination in admissions because the candidates were Black, Hispanic or Native American. Note: One of the legal “Predicates” applicable to all discrimination laws allows race-based, and/or ethnic-based, and/or Native American-based decision-making is to permit the school to remedy and rectify its prior unlawful decisions adversely affecting Protected Groups.

But the UNC and Harvard advocates all refused to give Justice Sotomayor that “life preserver” she was anxiously searching for as she saw the discriminatory (so-called “Affirmative Action”) admission practices in the case drowning in the heavy seas of withering questions from her fellow Justices.

The Good News for Title VII and Executive Order 11246, by Analogy

Title VII law (and by analogy Executive Order 11246 law which adopts the substantive law of Title VII) allows employers to take “self-help” by using race/ethnic/national origin-based programs to remedy their prior unlawful discriminatory employment decisions adversely affecting one or more Protected Groups. This same “self-help” concept is embedded in the Fourteenth Amendment Equal Protection Clause (applicable to UNC) and in Title VI of the 1964 Civil Rights Act (applicable to both UNC’s and Harvard’s receipts of Federal Financial Assistance (i.e., “FFA,” or “grant” money).

Title VI, Civil Rights Act of 1964

§2000d Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color or national origin

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Note: Title VI is the legal claim which hauled Harvard into the federal courts in this case. The Fourteenth Amendment, applicable to limit the action of the states of the United States, does not apply to Harvard University as a private school. As an FFA recipient, UNC must defend against both the Fourteenth Amendment’s and Title VI’s prohibitions on race, ethnic and national origin discrimination in this case.

So, this remediation issue now brings into sharp focus what is really going on in the UNC and Harvard cases DIFFERENT FROM either true “Affirmative Action” initiatives or in discrimination law applicable to other than institutions of higher learning. In a nutshell, for the last 44 years the SCOTUS has given institutions of higher learning a special “hallway pass” (a legal “Predicate”) allowing them (uniquely) to discriminate in admissions based on race. ethnicity, gender and national origin to “to achieve the educational benefits flowing from a diverse student body,” as the Grutter court put it.

So, let’s get the total catalog of “Predicates” on the table that allow state (and federal) employers/institutions and private sector employers and institutions to lawfully use race, ethnicity, gender, and/or national origin in their selection and operational processes:

(State and Federal) Government Employers

There are two legal permissions to discriminate lawfully based on a Protected Status available to state and federal governments and a third one uniquely available for admissions to higher learning institutions. U.S. Supreme Court Decisions finding a “compelling state interest” “Predicate” to uphold the use of race-preferential classifications by state or federal government actors (in any legal context) are listed below:

  1. For Reasons of National Security: Korematsu v. U.S., 323 U.S. 214 (1944)
  2. To Remedy Past Discrimination for Which the State was Responsible. But, how far back?: Richmond v. J.A. Croson Co., 488 U.S. 469, 504 (1989)
  3. To “Achieve the Educational Benefits Flowing from a Diverse Student Body”: Grutter v. Bollinger, 539 U.S. 306 (2003)

Private Employers and Institutions of Higher Learning

The two legal “Predicates” (i.e., “affirmative legal defenses to otherwise unlawful discrimination) available to private employers and the one unique “Predicate” available for admission to institutions of higher learning are these:

  1. a “Manifest Imbalance,” United States Steelworkers of America v. Weber , 443 U.S. 193 (1979); and/or
  2. a “Strong Basis in Evidence,” Ricci v. DeStefano, 557 U.S. 557 (2009)
  3. to “Achieve the Educational Benefits Flowing from a Diverse Student Body”: Grutter v. Bollinger, 539 U.S. 306 (2003)

The first two of these private sector “Predicates” for a preference in employment based on a Protected Status rely on the “remediation” theory: that an employer/an institution has the right, as an affirmative defense, to take race and/or sex and/or ethnicity and/or national origin into account when remedying one’s prior unlawful discrimination. The Courts have always liked “self-help” and the notion of employers and institutions “stepping up to the plate” to repair their own unlawfully discriminatory acts…cleaning up their own mess without government intervention.

Punchline: The legal issue in the UNC and Harvard cases—whether they have a proper legal predicate (“affirmative defense” in the language of the law) for their discriminations to “Achieve the Educational Benefits Flowing from a Diverse Student Body”—is NOT an “Affirmative Action” issue at all, as noted above. And now we realize, the UNC/Harvard “Predicates (“affirmative defenses”) they argue permit their discrimination in admissions is an issue not even applicable to discrimination law outside of the context of institutions of higher learning for admissions purposes.

The special and unique rule Bakke and Grutter cut out for admissions discrimination in higher education do not affect private sector employer “Predicates” in any way. Said another way, the unique Predicate available to institutions of higher learning for the last 44 years is not one of the Predicates available to private employers to put forward to defend their discriminatory employment or commercial practices.

Note 1: After the difficult day the UNC/Harvard advocates had last week, every institution of higher learning still interested to discriminate against White and Asian candidates for admission will now explore whether they may now adopt a “remediation” Predicate. But, the “remediation Predicate” is NOT for the faint of heart.

Having been asked over the years to draft many “preference predicate” memoranda for employers and institutions of higher learning that they could use to adopt as legal support to allow for preferential hiring/admissions (based on a Protected Status(es)), I can tell you it is a difficult road to travel.

It is also a differential road: Not all employers/institutions can qualify for and claim the needed “remediation” Predicate. Rather, it is only those which:

  1. unlawfully excluded Protected Group Members in the past based on their Protected Status, and
  2. are now willing to “step up to the plate” and confirm that sordid past, and
  3. are now ready and prepared to remedy what they have done.

The “remediation Predicate” also requires careful review and documentation to justify what is otherwise unlawful discrimination. The “remediation Predicate” is not one HR managers or admission officers may just say they will adopt in a 1-hour meeting. Rather, a “remediation preference” will be based on a detailed analysis of the empirical facts of the employer’s/institution’s past decision-making and legal findings made by lawyers as to whether prior unlawful discrimination occurred.

Note 2: There is a terribly important unresolved legal question haunting the “remediation Predicate”: whether the unlawful discrimination the employer/institution is remedying occurred within any applicable statute of limitations period? Case law establishes, too, that “societal discrimination” does not satisfy the “remediation predicate.” Rather, the unlawful acts must be at the hand of the employer/institution now desirous of “turning over a new leaf” and deploying a Protected Status-based preference to remedy that employer’s/institution’s prior unlawful conduct.

Many institutions of higher learning which have engaged in Bakke and Grutter admissions preferences will, nonetheless, be very interested in the “remediation Predicate” if the SCOTUS hands down a decision(s) reversing or limiting those prior case decisions. Those institutions of higher learning that have been discriminating in reliance on Bakke/Grutter will thus have some legal exposure to White and Asian students excluded from attendance due to their race or national origin, UNLESS the SCOTUS makes its adverse decision(s) “prospective” with the coming academic year (2023-2024, or later). (My personal prediction is 6-3 against UNC and 6-2 against Harvard: Justice Jackson recused herself from the Harvard case because she had sat on Harvard’s Board of Overseers for six terms).

Other institutions of higher learning that want to continue to discriminate will want to know whether the unlawful conduct in admissions in which they have engaged and that will qualify them for the “remediation Predicate” must have occurred during the one, two or perhaps up to six-year statute of limitations period available under applicable state and federal statutes. For many of these institutions, however, their recent history will show no unlawful discrimination against Blacks, Hispanics and/or Native Americans because of their adherence to Grutter preferential admission plans. What these institutions will want to then know is whether “historical” discrimination going back decades or going even as far back as the Civil War will “count” towards proof in support of a “remediation Predicate.” There is case law, however scant, on this legal issue.

Finale: So, there are at least three primary reasons why any forthcoming adverse decision(s) in the UNC and Harvard discrimination cases will not diminish proper “Affirmative Action” initiatives, or those of the OFCCP:

  1. The UNC and Harvard Cases are Not “Affirmative Action” Cases
  2. OFCCP’s Affirmative Action “Goals” are Not “Quotas” or Preferences and Neither Permit Nor Provoke Race, Ethnic or National Origin Discrimination
  3. No SCOTUS Justice Seemed Opposed To “Remediation” as a “Predicate” To Justify UNC’s and Harvard’s Discriminatory Admission Practices, So Existing Preference Discrimination Law Under Title VII and Executive Order 11246 Is Unscathed

In early 2023, as we get closer to the time the SCOTUS will hand down its decisions in the UNC and Harvard cases, we will publish several back-to-back BLOGs to help further understand the legal issues and their practical application to DE&I discussions and initiatives and to building lawful employment preference plans.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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John C. Fox
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