The Harvard and UNC Case Decisions Are Coming: What Corporations, Colleges and Universities, and Federal Contractors Need to Know

I do not take a position either pro or con race-based admission decisions in this Blog, but rather want to accomplish three different things:

In Part I, below, I want to help prepare readers for the case decisions expected to come within the next two weeks (possibly tomorrow!) from the Supreme Court of the United States (“SCOTUS”) in the Harvard and University of North Carolina (“UNC”) cases by outlining the five possible outcomes which could come down from the Court.

In Part II, below, I provide thumbnail sketches of the legal holdings of the case decisions that frame and explain admission preferences law. These “thumbnails” include a discussion of the three areas of law in which the SCOTUS has approved a state or federal government’s use of race in decision-making. I also outline in this section the five primary SCOTUS discrimination law admission preference case decisions which have currently and uniquely authorized and framed the debate about the use of race in institutions of higher learning (i.e., colleges and universities) for the last 45 years and which have helped shape their admissions decisions.

In Part III, below, I describe, again–beyond my November 7, 2022, DirectEmployers Week In Review Blog – the three reasons the Harvard and UNC cases are improperly confused as “Affirmative Action” cases and why corporations and federal contractors should have little concern for the holdings of the coming case decisions regardless which of the five holdings the SCOTUS hands down.

Part 1

First, there are five possible holdings the SCOTUS could choose to hand down. The heavy betting among Supreme Court watchers is that choice 5 is the most likely possible outcome for the reasons I note, below:

1. Uphold the lower federal court decisions upholding both Harvard’s and UNC’s race-based admissions processes as not unlawful WHILE continuing the tradition of the last five major SCOTUS admissions preferences case decisions to “fine-tune” the proof institutions of higher learning must put forward to successfully defend their race-based admission selections.

Note #1: To achieve a baseline understanding of the special discrimination law the SCOTUS has carved out for institutions of higher learning over the past 45 years when making race-based school admission decisions, here is a linked list of the five major SCOTUS case decisions (discussed below) which, in three waves of decision-making, have created the legal analytical framework SCOTUS will undoubtedly discuss in the upcoming Harvard and UNC decisions:

The Regents of the University of California v. Allan Bakke, 438 U.S. 265 (1978)

Gratz v. Bollinger, 539 U.S. 244 (2003)

Grutter v. Bollinger, 539 U.S. 306 (2003)

Fisher v. University of Texas, 570 U.S. 297 (2013) (Fisher I)

Fisher v. University of Texas, 579 U.S. 365 (2016) (Fisher II)

2. Reverse the lower federal court decisions upholding both Harvard’s and UNC’s race-based admissions processes by continuing the tradition of both Bakke and Gratz of ruling for those challenging the University’s raced-based preferences given the manner in which the at-issue University considered the race of applicants for admission (i.e., both Allan Bakke (White) and Jennifer Gratz (White) won their respective challenges to the University of California’s and University of Michigan’s race-based admissions practices). The SCOTUS nonetheless upheld the notion of the use of race-based admission practices in both Bakke and Gratz and handed down additional rules for institutions of higher learning to follow to successfully “fine-tune” their race-based admission practices to make them lawful discrimination.

So, out of the “losses” the respective Universities suffered in Bakke and Gratz, the SCOTUS nonetheless upheld the notion of the use of race-based preferences in admissions even while criticizing the precise manner in which the at-issue universities considered race in their admission practices.

3. Split-the-Decisions as the SCOTUS did in Gratz and Grutter to strike down the University of Michigan’s undergraduate program raced-based admission practices (Gratz) while the same day upholding the University of Michigan Law School’s use of race-based admissions (Grutter). Nonetheless, both decisions handed down further instructions to institutions of higher learning as to how they must “fine tune” the manner in which they consider race in their admission decisions if they indeed choose to consider race in their admission deliberations.

4. Remand to the lower federal courts to develop a more complete factual or legal record pursuant to new “fine-tuning” rules to apply to race-based admissions as occurred in Fisher I. Note: Fisher I and Fisher II are the same case arising from the United States Court of Appeals for the Fifth Circuit (New Orleans).

In Fisher I, a three-judge panel of the Fifth Circuit upheld the University of Texas’ (“UT’s”) consideration of race in admission decisions to its undergraduate school. On appeal to the SCOTUS of her claim that UT had unlawfully discriminated against her, Plaintiff Abigail Fisher complained that the Fifth Circuit had not sufficiently applied “strict scrutiny” as the Fourteenth Amendment’s Equal Protection Clause” requires to review UT’s admission practices.

The SCOTUS, too, was not impressed with the Fifth Circuit’s care in applying the special discrimination law “fine-tuning” rules the SCOTUS had handed down ten years earlier in its Gratz and Grutter case decisions. The SCOTUS was particularly concerned that the Fifth Circuit had not carefully applied the “strict scrutiny” (described more fully below) that the Fourteenth Amendment’s Equal Protection (of the laws) Clause imposed on the use of state-government decision-making.

In a case decision remanding the case back to the Fifth Circuit in a decision now known as “Fisher I” (2013), the SCOTUS then neither upheld nor struck down UT’s race-based preferences in its undergraduate admission practices. Instead, the SCOTUS handed down additional guidance (more “fine-tuning” instructions) to the Fifth Circuit panel to allow it to again review the Fisher case but to aid it to more carefully apply the SCOTUS’ law to the facts the federal District Court (the trial court) had found to exist as to the manner in which UT had considered race in its admission process to its undergraduate school.

The Fifth Circuit three-judge panel then again reviewed the case and then again upheld as lawful the manner in which UT had considered race in its admissions processes. Abigail Fisher then again appealed to the SCOTUS. The SCOTUS only then reluctantly affirmed the Fifth Circuit’s decision in what is now called its Fisher II decision (handed down in 2016).

5. Shut down race-based preferences in admissions to institutions of higher learning altogether as Justice Clarence Thomas called for in the Fisher cases and setting the table for the showdown in the current Harvard and UNC cases:

Fisher I: Justice Thomas wrote a “Concurring” Opinion accompanying the Majority opinion remanding the case back to the Fifth Circuit for further attention to the legal standards to be applied under the Fourteenth Amendment strict scrutiny analysis of state-based racial classifications of its citizens (discussed below). In doing so, Justice Thomas thus “set the stage” for the concerns that have animated race-based admission advocates as to the likely purpose for the SCOTUS to have taken up the Harvard and UNC cases… not to further again “fine-tune” the law, but rather to reverse Bakke and Grutter and shut down race-based admission preferences in their entirety. Specifically, here is what Justice Thomas wrote in the Fisher case decisions:

Fisher I: “I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin’s (University) use of racial discrimination in admissions decisions. Ante, at 1. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.”

Fisher II: Justice Thomas more forcefully explained his views opposing race-based preferences in college and university admissions in a “Dissenting” Opinion in Fisher II in which he joined Justice Samuel Alito (thus providing two “Shut down” votes going into the Harvard and UNC cases) and greatly heightening the concern of advocates for race-based preferences:

“I join Justice Alito’s dissent. As Justice Alito explains, the Court’s decision today is irreconcilable with strict scrutiny, rests on pernicious assumptions about race, and departs from many of our precedents.

I write separately to reaffirm that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Fisher v. University of Tex. at Austin, 570 U. S. ___, ___ (2013) (Thomas, J., concurring) (slip op., at 1). “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Id., at ___ (slip op., at 2) (internal quotation marks omitted). That constitutional imperative does not change in the face of a “faddish theor[y]” that racial discrimination may produce “educational benefits.” Id., at ___, ___ (slip op., at 5, 13). The Court was wrong to hold otherwise in Grutter v. Bollinger, 539 U. S. 306, 343 (2003). I would overrule Grutter and reverse the Fifth Circuit’s judgment.”

Justice Ginsburg’s Acquiescence in an Eventual Shutdown of Race-Based Admission Preferences Left Open Only the Question of When to Bring Down the Curtain

Justice Ruth Bader Ginsburg, the leader of the liberal wing of the SCOTUS in 2003 at the time of the Grutter SCOTUS decision, added more fuel to the fire about ending admission preferences based on race by recognizing in the last paragraph of her “Concurring” Opinion in the Grutter case that race-based admissions should eventually end:

“However strong the public’s desire for improved education systems may be, [citations omitted] it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country’s finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.^**[footnote omitted] (bold added)

Let’s pause to reflect on Justice Ginsburg’s interesting phrase: “…that over the next generation’s span….” Does that mean after a generation (which is generally considered to be 20-30 years) or does it mean sometime during the next 20-30 years?

Note #2: It has now been twenty years since Justice Ginsburg penned her plea to allow race-based admissions to higher education to last a bit longer.

Regardless of whether Justice Ginsburg was pleading for another 20 or 30 years or longer of continued race-based admissions, it is clear she was specifically agreeing that race-based admissions must end at some point. When is enough enough is the open question? Justice Ginsburg’s provocative language thus messages the question: “When should the curtain come down on race-based admission preferences”? Many advocates of race-based preferences fear the SCOTUS has already decided that that time is June 2023. We shall soon know.

Part II

Below are thumbnail outlines of the legal holdings critical to understand the admission preferences legal fight, including thumbnails of the five primary SCOTUS discrimination law admission preference decisions.

First, it is important to understand what laws the Plaintiffs (Students for Fair Admissions, Inc.) have accused Harvard and UNC of breaking.

While Harvard is a private college and UNC is a state university subject to additional Constitutional and federal law prohibitions and remedies for “state actions” based on race (not otherwise applicable to private colleges or universities), the same central legal standards will apply equally to each institution despite the absence of “state action” at private Harvard College.

Specifically, the same Plaintiffs (Students For Fair Admissions, Inc.) sued both Harvard and UNC alleging they both violated Title VI (not Title VII) of the 1964 Civil Rights Act (“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 that both Harvard and UNC receive federal “grant” monies (more technically known as “Federal Financial Assistance”).

However, since UNC is also a university the state of North Carolina operates, the Plaintiffs also sued UNC for violating other laws prohibiting state institutions from undertaking discrimination based on race. So, the Plaintiffs accused UNC of not just violating Title VI but also the Equal Protection Clause (“EPC”) of the Fourteenth Amendment to the United States Constitution, and 42 U.S.C Sections 1981 and 1983 (explained below).

Significantly, as to the scope of Title VI’s protections against race discrimination, the SCOTUS held in 1978 in the Bakke case that the substantive prohibitions on discrimination in Tile VI and the EPC were the same. So, Harvard and UNC will both be judged by the same substantive body of law the federal courts have built up over the centuries under the Fourteenth Amendment’s Equal Protection Clause (since Title VI prohibitions on conduct are synonymous with those prohibitions under the EPC).

Second, below is the applicable case law (in a nutshell) the SCOTUS will be applying to the admission preferences at-issue in the Harvard and UNC case decisions.

Forty-five years ago the SCOTUS created a one-of-a-kind, but narrow, carve-out permission from the Fourteenth Amendment prohibitions on the use of race in governmental decision-making for institutions of higher learning (universities and colleges) to discriminate “because of race” in admissions to the institution…not for use in employment or contracting…just admissions to institutions of higher learning.

Harvard and UNC feel that they are taken by surprise by the pending litigation and all the ensuing public press fuss since they believe their use of race was specially permitted by prior SCOTUS case law decisions. Moreover, both Harvard and UNC argue vociferously that they believe they played by the rules of the SCOTUS’ unique grant to institutions of higher learning to lawfully discriminate in admissions in favor of African Americans.

The Bakke Case Summary

The case that opened this door to the special rules of discrimination law that have operated in admissions to institutions of higher learning to make lawful discrimination against Whites, Asians and other national origins was The Regents of Univ. of California v. Allan Bakke, 438 U.S. 265 (June 26, 1978).

Question: Presented: “Did the University of California violate the Fourteenth Amendment’s equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke’s application for admission to its medical school?”

Allan Bakke’s Claim: The University’s use of race to repeatedly deny him admission to the UC Davis Medical School violated both Title VI of the 1964 Civil Rights Act and the 14th Amendment to the United States Constitution (applicable to and restraining state government actions).

Note #3: At the time of Allan Bakke’s application, UC Davis had a “Special Admissions Program” that reserved 16 of 100 admission slots for “minorities” …what the Bakke Court called a “quota.”

The Major Bakke Holdings

A) Admissions criteria that use race as a definite and exclusive basis for an admission decision violate the Equal Protection Clause of the Fourteenth Amendment as well as Title VI of the Civil Rights Act of 1964.

The SCOTUS held in Bakke that the language of § 601 (of The Civil Rights Act of 1964: “Title VI”), 78 Stat. 252, like that of the Equal Protection Clause, is “majestic in its sweep”:

“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.” 438 U.S. at 281-287.

The Bakke Court also explained the interplay of Title VI and the Fourteenth Amendment by explaining that Title VI simply implements the Constitutional prohibition as to the award of Federal Financial Assistance (“i.e., “grants”):

“Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction.” 438 U.S. at 281-287.

Note #4: Just for academic completeness, let me explain here the claims made against UNC which go beyond the Title VI claim used to attack UC Davis’ and Harvard’s race-preferential admission practices.

B) The Fourteenth Amendment “Equal Protection Clause” (Article 1 of the Amendment):

“…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Note #5: The SCOTUS has only approved of the use of race by the federal government under the Equal Protection “Component” of the Fifth Amendment to the U.S. Constitution for three purposes:

1) to protect national security (in upholding the internment of people of Japanese ancestry during WWII): Korematsu v. United States, 323 U.S. 214 (1944) [the first case to apply what the SCOTUS eventually fine-tuned and called the “strict scrutiny” standard under a Constitutional “Equal Protection” analysis]. The “strict scrutiny” standard is at the center of the legal controversies in the Harvard and UNC cases:

“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspected. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” (See paragraph 2 of the “Majority” Opinion in Korematsu.)

While the Fifth Amendment to the United States Constitution contains no Equal Protection “Clause” or even Equal Protection language, the SCOTUS has nonetheless read an Equal Protection “Component” into the Due Process Clause of the Fifth Amendment to prohibit federal action based on race in the same way the Equal Protection Clause of the Fourteenth Amendment prohibits the states from using race in state decision-making. As a result, SCOTUS’ modern approach to Fifth Amendment Equal Protection claims has always been precisely the same as to Equal Protection claims under the Fourteenth Amendment. See, e.g., Schlesinger v. Ballard, 419 U. S. 498 (1975).

Thus, SCOTUS cites Equal Protection case law interchangeably from case decisions interpreting the Fifth Amendment Equal Protection “Component” to cases interpreting the Fourteenth Amendment Equal Protection “Clause.” Both the “Component” and the “Clause” get to the same legal result.2.) to allow a remedy for racial discrimination: Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) [Adarand was the SCOTUS case decision which held specifically that courts must analyze racial classifications the federal government imposes under the Equal Protection “Component” using the “strict scrutiny” legal standard, the most stringent level of review which requires that racial classifications both (a) further “compelling governmental interests,” and (b) also be “narrowly tailored.”]

“The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” 515 U.S. at 227-231.

The SCOTUS’ Adarand decision also recognized that racial preferences were appropriate to remedy past unlawful discrimination:

“It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow tailoring” test set out in this Court’s previous cases. 515 U.S. at 235-237.

But for this holding, it would be unclear that courts, federal agencies and governmental employers could remedy unlawful race discrimination with remedial orders requiring, for example, financial payments to Black victims of unlawful race discrimination or orders requiring employers to hire African Americans, Whites, Hispanics, etc., when those employers have previously unlawfully neglected or refused to do so.

Note #6: The Harvard and UNC case decisions turn on those two critical legal elements of proof both Universities must prove up: that their race-based admission preferences furthered (1) “compelling interests,” AND (2) that those race-based practices were “narrowly tailored” to avoid the use of race in decision-making if possible, or to at least reduce the use of race so much as possible consistent with achieving the University’s “compelling interest.”

3) The third SCOTUS allowance to allow race-based practices consistent with the Fourteenth Amendment’s Equal Protection Clause/Title VI applies to institutions of higher learning to further their compelling interest in diversity to further their educational objectives, and if those race-based practices are “narrowly tailored.” [This is the Bakke, Gratz, Grutter, Fisher I and Fisher II line of university and college race-based admission preference case decisions referenced above and discussed below.]

C) 42 U.S.C. Section 1981 (Section 1 of the Civil Rights Act of 1866):

“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.”

D) 42 U.S.C. Section 1983 (Section 1 of the Ku Klux Klan Act of 1981, also known as the Civil Rights Act of 1871):

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

So, Section 1981 was designed to allow Black Americans after the Civil War to make and enforce contracts in the same fashion as Whites. Section 1983 merely provides remedies for violations of federal and state laws, including Constitutional rights violations, accomplished under the “color of state action.”

E.) Bakke opened the door to so far 45 years of racial considerations in admission decisions in higher education:

“Affirmative action programs that take race into account can continue to play a role in the college admissions process, since creating a diverse classroom environment is a compelling state interest under the Fourteenth Amendment. State universities go too far, however, when they set a certain quota for the number of minority students who enroll.”

F) Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. 438 U. S. at 281-287 and 438 U. S. at 328-355. (So, Title VI’s prohibitions on race discrimination in federal grants mirrors the Constitutional prohibition on the use of race in state government decision-making and adds nothing more, but nothing less).

So, Harvard will be judged by Fourteenth Amendment standards even though there is no “state action” (since it is a private college with no state action requiring the college to take “race” into account in its admissions process).

G) “Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, U.C. Davis’ special admissions program, which forecloses consideration to persons like Mr. Bakke, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause.”  438 U. S. at 287-320.

H) Since UC Davis could not satisfy its burden to prove that Allan Bakke would not have been admitted even if there had been no Special Admissions Program, he must be admitted. 438 U. S. at 320. So, Allan Bakke won and was admitted to the UC Davis Medical School.

I) Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify UC Davis’ remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. 438 U. S. at 355-379.

Since 1978, SCOTUS has on four subsequent occasions confirmed the Bakke special permission to discriminate in favor of African Americans in admissions in institutions of higher education while fine-tuning those rules of permission for those Universities and Colleges that wished to undertake race-preferential admissions. However, one of those case decisions, like Bakke (which started the admissions preference parade) also struck the at-issue preference down even while providing guidance to universities and colleges as to how to accomplish them correctly and consistent with the requirements of the Equal Protection Clause.

GRATZ v. BOLLINGER, 539 U.S. 244 (2003)

By the way, Bollinger was a University of Michigan Administrator. (Lots of people ask me who he was and what part he played in this important SCOTUS case)

SCOTUS found the University of Michigan’s use of racial preferences in undergraduate admissions unconstitutional.

What was wrong? U of M’s admission practices:

• were not sufficiently “narrowly tailored” to avoid the use of race where possible to achieve the desired diversity; and
• too closely approximated racial quotas the Bakke case decision had struck down as inconsistent with the 14th Amendment’s “Equal Protection Clause;” and
• should have considered race in an individual evaluation of the candidate to achieve class diversity (accepting the arguments of civil rights advocates that racial isolation on campus was not conducive to learning and that a “critical mass” was needed as part of the University’s compelling need for diversity)

GRUTTER V. BOLLINGER, 539 U.S. 306 (2003)

This was the first “win” for admission preferences. SCOTUS heard this case involving the University of Michigan Law School’s use of racial preferences in admissions to the law school with its companion case (the Gratz University of Michigan undergraduate admission case). SCOTUS used these “bookend” cases to show “how not to do it” and “how to do it right.”

The Court framed the first legal issue as “whether the Law School’s use of race was justified by a compelling state interest.” SCOTUS found in Grutter, as Justice Powell had done in Bakke, that “the principle of student body diversity was a compelling state interest.”

The Court then teed up the second and most critical legal issue: whether the law school had “narrowly tailored” its decisions based on race.

Note #7: This is where the notion of using race as a “plus” factor, and not as the determinative or only factor, originated:

“Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” (citation omitted). The purpose of the narrow tailoring requirement is to ensure that “the means chosen ‘fit’ … th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

  *     *      *     *     *

“To be narrowly tailored, a race-conscious admissions program cannot use a quota system–it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke, 438 U.S. at 315 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” 438 U.S. at 317. In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.”

Note #8: Harvard calls its “plus factors” by the name “tips” (meaning that the factor “tips” the candidate’s chances to be admitted in the direction of admission). Harvard considered numerous kinds of otherwise controversial “tips” beyond just racial “tips” during the period of admissions under review. Undercutting its use of “merit-based” factors in its admission decisions, these “tips” included, for example, the athletic prowess of the candidate; legacy history of graduation from Harvard from prior family members; financial donations to Harvard; Dean of Student’s (what I call the “wild-card”) call-out of a candidate, etc.)

The Grutter Court found the law school’s individualized consideration of Black candidates and consideration of race as a “plus” (but not determinative) factor to meet the 14th Amendment’s “narrow tailoring” requirements and upheld the law school’s use of race in admissions to the law school (which resulted, by the way, in an approximately 10% increase in Black admissions from an otherwise approximately 4+% (without the race-based “plus factor”) to about 14+% of the class the law school admitted with race-based considerations.)

FISHER v. UNIVERSITY OF TEXAS, 570 U.S. 297 (2013) (Fisher I)

FISHER V. UNIVERSITY OF TEXAS, 579 U.S. 365 (2016) (Fisher II)

As briefly noted above, the two Fisher cases are the same case. SCOTUS sent Fisher I back to the United States Court of Appeals for the Fifth Circuit (New Orleans) to bear down more closely on its “strict scrutiny” analysis of the race considerations the University of Texas had used in undergraduate admissions since the SCOTUS had handed down its Grutter decision (upholding the University of Michigan Law School’s race-based admission practices).

As additional guidance, SCOTUS elaborated on three general legal principles for the Fifth Circuit to consider more carefully:

1. Apply “strict scrutiny” to the race-based admissions processes
2. Grant judicial deference to the University’s reasoned explanations of its decision to pursue student body diversity, and
3. Grant no judicial deference to the determination whether the use of race in UT’s admissions practices was “narrowly tailored.”

In Fisher II, the SCOTUS upheld the UT’s racial preference admission practices, finding them sufficiently “narrowly tailored” to survive the 14th Amendment’s Equal Protection requirements. The searing “narrow tailoring” analysis SCOTUS had ordered up from the Fifth Circuit seemed lacking, but the SCOTUS seemed loathe to again fault the otherwise usually conservative Fifth Circuit.

However, one of the problems haunting both the Fisher I and Fisher II case decisions was the Fifth Circuit’s understanding of precisely how UT took race into account during its admission process. This led to numerous political humorists of the day commenting on the Fisher II case decision that the new legal standard around the admissions table is that “a knowing wink and a nod” means to admit the candidate.

PART III: Harvard’s and UNC’s “Affirmative Action” is not the “Affirmative Action” of Federal Government Contractors

I explained the three reasons the above headline is true in my November 2022 DirectEmployers Week In Review Blog referenced above under these three headlines in that Blog:

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

So, How Did Federal Contractors Get Caught Up in The Confusion Whether Race-Based Preferences are “Affirmative Action”?

Unfortunately, Allan Bakke started this parade. Mr. Bakke’s lawyers initially framed the legal question Bakke presented to the SCOTUS for review in the first test of race-based admissions in higher education. As reported above, that question was whether the “affirmative action” he challenged (i.e., race-based admission practices the court-described as a “quota” of minority students to be admitted to the UC Davis Medical School) should be found violative of Title VI and the Fourteenth Amendment?

Confusing matters more from an unexpected source, Justice Ruth Bader Ginsburg’s Concurring Opinion in the 2013 Grutter case decision, as noted above, talked about the timing of when to sunset “affirmative action” when discussing what were clearly and only race-based admissions decisions the University of Michigan Law School considered.

And recently, the popular press and mainstream media have adopted the term “affirmative action” as a shorthand description of these complicated discrimination law cases. As a result, media coverage of these cases has ubiquitously, although erroneously, described the Harvard and UNC cases as “affirmative action” cases.

So, it is no wonder that the Harvard and UNC cases have become confused as “affirmative action” cases. The above observations are not a criticism of either Allan Bakke, or his lawyers, or of Justice Ginsburg (one of the smartest Justices to have ever sat on the SCOTUS). Rather, this confusion of terms is a by-product of the early days of affirmative action and the nomenclature then in vogue.

In those early days after President Johnson in 1965 penned and issued Executive Order 11246 requiring covered federal Government contractors to engage in “affirmative action,” the term “affirmative action” became synonymous with the concept of race-based preferences. It took the Carter Administration, and its creation of what we have since October 1, 1978 called the Office of Federal Contract Compliance Programs (“OFCCP”) to realize that governmental race-based preferences of all shapes and forms (in school admissions, contracts, employment, etc.) and in private sector employment could not be routinely practiced consistent with the U.S. Constitution and federal and state laws absent very special circumstances unique to the government program or the employer in question.

The Carter OFCCP made it clear in its written Rules, in its writings, and in its speeches at the time that the “affirmative goals” its Rules had required since 1972 (enacted during the Nixon Administration) of covered federal Government contractors were neither “preferences” nor “quotas.” The Carter OFCCP and every subsequent OFCCP Administration through the decades has forcefully repeated that OFCCP’s Rules indeed do not allow for or tolerate, let alone require, race, national origin and/or gender-based discrimination.

And indeed, during the last four Presidential Administrations (Bush, Obama, Trump and Biden), OFCCP has prosecuted covered federal Government contractors the agency believed unlawfully discriminated against Whites and males in favor of African Americans, Hispanics and women….and lots of them.

Rather, “goals” for federal government contractors have been and are merely mirror-image reflections of the percentages of at least minimally qualified minorities and women the contractor’s “Affirmative Action Program for Minorites and Women” calculated for that contractor at each of the contractor’s establishments where it hired employees. The federal contractor’s “goal,” which was equal to the availability of minorities and women in the contractor’s recruitment area, was not a “hiring” target or requirement but was/is rather a benchmark for recruiters to know that the reported percentage of minorities and women are available to be recruited to the company’s front door for later potential consideration for employment.

Whether a federal contractor met one’s recruitment goals was (and remains) measured by the company’s “good faith efforts” to attain the goal by ensuring strong and consistent outreach to minorities and women known to be available in the contractor’s recruiting market. Selection for employment (offer/reject) decisions were and are measured by traditional non-discrimination requirements…not by any regulatory enforced “goal” or quota.

Indeed, every OFCCP Administration since the Nixon Administration first created the concept of “goals” in 1972 to help recruiters know if they had thrown their recruitment nets widely enough to find all the minorities and women available for selection have acknowledged in writing that federal contractors may hire 10 out of 10 White males if they are better qualified than 10 competing Black and/or female candidates.

Harvard and UNC Admitted to Race-Based Selections Which Are the Antithesis of Federal Contracting “Affirmative Action”

A final note: The first sign that the Harvard and UNC cases are not “affirmative action” cases is their respective admissions that they both consciously, purposely, and openly used race to select Black students for admission to their schools.

Moreover, all three federal courts which built or examined the trial records in the cases similarly held that Harvard and UNC purposely and discriminatorily took race into account. (Those same courts also held, though, that Harvard’s and UNC’s race-based discriminatory practices were not unlawful discrimination under either Title VI or the Equal Protection Clause or other federal civil rights statutes applicable to UNC. Those courts also found that both schools had closely followed prior SCOTUS case law precedent specially authorizing institutions of higher learning to consider race in admission decisions).

By contrast, “Affirmative Action Rules” applicable to covered federal Government contractors and subcontractors, and enforced through OFCCP specifically disdain employment discrimination and rather describe “affirmative action” as:

“…a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination (emphasis added), over time a contractor’s workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects.” See 41 CFR Section 60-2.10.

OFCCP’s nondiscriminatory form of “affirmative action” is, of course, the antithesis of the conscious and purposeful discrimination in which Harvard and UNC unabashedly engaged. See also 41 CFR Section 60-2.35.  That Rule reports that OFCCP will not judge any federal contractor’s compliance with its “affirmative action” Rules by whether they achieve the recruitment goals federal contractors calculate to determine a rough estimate of the percentages of minorities and women available for the contractor to recruit and thereafter consider for employment using the contractor’s non-discriminatory selection standards.

Epitaph: Should the SCOTUS shut down college and university considerations of race in school admissions in the Harvard and UNC case decisions, we will follow with a Blog dedicated to practical suggestions going forward for federal contractors and college and university admission offices.

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.