Next Stage Considerations About the Supreme Court’s Affirmative Action Decision: How to Put the Warning Letter from the State Attorneys General in Context

At a Glance

• On July 13, 13 state attorneys general issued a letter to the executives of the top 100 companies in the country warning them about the “serious legal consequences” of actions deemed unlawful under the Supreme Court’s recent affirmative action decision.
• The lack of certainty about the legality of a program or policy won’t stop scrutiny or legal challenge over them.
• We suggest potentially affected organizations pause, take a breath, and begin a methodical approach to addressing this major change.

As higher education institutions, state and local governments, private employers and federal contractors grapple with understanding the impacts of the U.S. Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199 (U.S. June 29, 2023), it is not surprising that elected officials have markedly different views about the philosophy and effects of affirmative action and other race-conscious policies. Members of Congress, governors and President Biden have all issued statements ranging from press releases expressing general views of support or opposition to legal memoranda extrapolating the Court’s holding to a variety of contexts.

Of particular note is the July 13, 2023, letter from 13 state attorneys general to the executives of the top 100 companies in the country warning them about the “serious legal consequences” of actions deemed unlawful under the decision. The AGs admonish those companies “to refrain from discriminating on the basis of race, whether under the label of ‘diversity, equity, and inclusion’ or otherwise.” While it will undoubtedly take time — likely many years — to sort out what is lawful and unlawful in various contexts (such as non-admissions education policy, public program administration, public contracting and private employment) under the rationale of the case, it is worth observing that the scrutiny from these attorneys general and likely other officials and interest groups is already underway. In short, the lack of certainty about the legality of a program or policy won’t stop scrutiny or legal challenge over them.

So, what should potentially affected organizations do in response to this legal uncertainty? We suggest taking a breath and bringing method to the madness. Here’s a methodical way to start:

1. Work to pinpoint the relationship between what you are or what you do and how the Court’s decision might apply to you.
2. Think through with legal counsel the specific bases of potential legal jurisdiction over you and claims against you (e.g., 14th Amendment Equal Protection Clause, Title VI (federal funds recipient), Title VII (employer status), state laws, provisions of government contracts).
3. Identify the specifics of the programs or policies that could be argued to be race-conscious (being objective but expansive in potential scrutiny).
4. Review the rationale, language and reach of the policies and programs — looking for easy ways to tighten or alter those things that could be challenged or misunderstood.
5. Evaluate the profile of the policies and programs, the risk of legal challenge, and the consequences and costs of legal process and liability. 
6. Measure those risks against other potentially important interests, such as the mission and values of the organization, the views of valued constituencies, and the long-term goals of the organization.
7. Determine whether and how change is required in those policies and programs.

There is no question we are in a change environment. But as always, the first, best step is to cut through the noise and start to cope with that change in measured ways.