Memorandum: Anti-DEI Retrenchment and Litigation after Students for Fair Admissions v. Harvard

Anna Griffith

5, September 2024

In June 2023, the Supreme Court in Students For Fair Admissions, Inc. v. President and Fellows Of Harvard College (“SFFA”) found that Harvard University’s and the University of North Carolina’s affirmative action admission policies unconstitutionally employed race-based discrimination, violating the Equal Protection Clause of the 14th Amendment.[1]

Beginning with its first constitutional review of affirmative action, the Court has consistently found that the only governmental interest compelling enough to warrant the use of race in admissions policies and decisions, and thus satisfy strict scrutiny judicial review, is the institution’s interest in “obtaining the educational benefits that flow from an ethnically diverse student body.”[2] Before this first opinion in Regents of Univ. of Cal. v. Bakke, affirmative action initiatives were a “response to the legacy of Jim Crow segregation and, by extension, slavery. It was an outgrowth of the civil-rights initiatives… Diversity was part of the conversation, but it was only one of many reasons selective colleges employed affirmative action.”[3]

The diversity rationale articulated in Bakke in 1978, and affirmed in subsequent decisions such as Grutter v. Bollinger[4] and Fisher v. Univ. of Tex.,[5] has come to define modern civil-rights practices and policies both in higher education and the workforce.[6] The Supreme Court determined in SFFA, however, that the university affirmative action policies were insufficiently focused, the benefits of diversity unmeasurable, and that considerations of diversity constituted prohibited racial stereotyping.[7] While claiming that SFFA did not constitute the overturn of Grutter, and while Bakke actually endorsed Harvard’s affirmative action policies as a leading example of constitutional affirmative action, the majority in SFFA narrowed Equal Protection analysis so severely that race consciousness in higher education will struggle to withstand the constraints.[8]  This decision, employing the language of a “colorblind constitution”[9] and making no distinction between race consciousness, classification, and subordination, has signaled to conservative policy makers and legal advocates that reverse discrimination claims doctrinally hold the same weight as any invidious racial discrimination claim.[10] Thus, those looking to attack race-conscious policies aimed at promoting substantive racial justice have new, binding Equal Protection precedent specifically pointing at diversity as the problem.

This memorandum will proceed in three parts. Part I discusses the ways in which the Court’s SFFA decision triggered a wave of state legislation, lawsuits, and conservative political maneuvering aimed at decimating Diversity, Equity, and Inclusion (“DEI”) practices and policies at American universities. Part II highlights how lawsuits, real or threatened, have influenced diversity-related recruitment policies and career opportunities. Part III contrasts DEI layoffs with corporations’ ability–and need–to protect or rebrand DEI policies in the face of legal intimidation. The memorandum ends with a brief discussion about the complex racial justice implications of DEI policies. Appended after the conclusion is a non-exhaustive chronology of reverse-racism litigation initiated in the aftermath of the Court’s decision in SFFA.

Continue reading the memorandum in its entirety below:

Memorandum: Anti-DEI Retrenchment and Litigation after Students for Fair Admissions v. Harvard

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181, 143 S. Ct. 2141 (2023).

[2] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-312 (1978).

[3] Richard Thompson Ford, Derailed by Diversity: The Supreme Court has watered down affirmative action’s core justification: justice, The Chronicle of Higher Education, September 2, 2022 (https://www.chronicle.com/article/derailed-by-diversity?bc_nonce=m02du2i7brhzk5uodzc0c&cid=reg_wall_signup).

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

[5] Fisher v. Univ. of Tex., 579 U.S. 365 (2016).

[6] Ford, supra n. 3.

[7] Students for Fair Admissions, 143 S. Ct. at 2169-70. 

[8] Students for Fair Admissions, 143 S. Ct. at 2251 (Sotomayor, J., dissenting) (“The Court’s opinion circumscribes universities’ ability to consider race in any form by meticulously gutting respondents’ asserted diversity interests. Yet, because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality.).

[9] Id. at 2164, citing Bakke, 438 U.S. at 416.

[10] See, e.g., Joel K. Goldstein, The Supreme Court's Assault on History in SFFA, 54 SETON HALL L. REV. 1353 (2024); Kimberly West-Faulcon, The SFFA v. Harvard Trojan Horse Admissions Lawsuit, 47 SEATTLE U. L. REV. 1355 (2024).