Two pivotal affirmative action cases pending at the Supreme Court this term that deal with college admissions are being closely watched by private employers who fear a sweeping decision could undermine corporate diversity programs.
"What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve 'the educational benefits of diversity,'" Alito wrote in 2016 in a dissent joined by Roberts and Thomas.
Perhaps sensing the shifting landscape, the two lawsuits filed by Students for Fair Admissions, an anti-affirmative action group founded by conservative legal strategist Edward Blum, ask the high court to decide whether the 2003 precedent should be overruled.
In the Harvard suit, the group is relying in part on Title VI of the Civil Rights Act of 1964, which prohibits entities that receive federal funding from discriminating on the basis of race, color or national origin. Title VII of that same act bars discrimination based on race and other factors in the workplace. A decision under Title VI impacting affirmative action would likely prompt a new wave of litigation under Title VII challenging racial preferences in the workplace.
"There absolutely will be spillover," said Stacy Hawkins, a vice dean and law professor at Rutgers University who specializes in employment law and diversity."There has always been spillover between the court's affirmative action cases in the higher education context and the use of race in hiring and employment."
That said, hiring and promotion at a company is a different endeavor than college admissions, Hawkins said, in part because those decisions are often inherently individualized. Companies, generally, are not hiring thousands of people at a time for a similar position in the same way universities admit an entire class at once. It's much easier, she said, for private companies to stay within the boundaries set by the court.The court is expected to rule in both cases next year.
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