Racial Preferences in Employment After Students for Fair Admissions v. Harvard

Sep 13, 2026

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The essay analyzes the Supreme Court’s Students for Fair Admissions, Inc. v. President & Fellows of Harvard College decision and its effects on employers’ use of racial preferences in hiring or promotion. It addresses whether the Court’s doctrine permits operationally motivated preferences, reviews relevant Title VII affirmative action jurisprudence, and previews arguments likely to shape future litigation. It also considers how the “manifest imbalance doctrine” may guide employers seeking to reduce underrepresentation of Black employees.

LanguageEnglish

CategoryLetters

FormatPDF

Pages14

Reading Time5 min

AccessFree to download

Introduction

Supreme Court impact on racial preferences in employment

Anticipated legal arguments and predictions

Racial Preferences in Employment After Students for Fair Admissions v. Harvard MICHAEL J. YELNOSKY* “[W]hy were you talking about corporate America?”1 INTRODUCTION The Supreme Court’s recent decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College2 (SFFA) will no doubt precipitate a battle royal over the legality of those aspects of the ubiquitous diversity, equity, and inclusion (DEI) programs of American businesses that involve the use of racial preferences in hiring or promotion. The Supreme Court has never addressed the question whether an employer can lawfully give a preference to a Black applicant in pursuit of operational benefits, such as increased innovation or improved problem-solving, associated with a more racially diverse workforce.3 The forces that have kept the issue out of the courts have shifted, and DEI programs are now squarely in the crosshairs of well-organized and well-funded opponents of racial preferences.4 While reasonable minds disagree about the relative importance of the admissions practices of America’s elite colleges and universities, no one can deny that the human resources practices of the country’s employers impact the well-being of more than 150 million American workers.5 The stakes are high. The aim of this Essay is to provide a modest contribution to the conversation about the upcoming battle by describing the extant doctrine, previewing some of the arguments on which the fate of racial preferences 6 in employment may turn, and making a few predictions. Employers will likely lose the fight for the right to use racial preferences to pursue operational goals. On the other hand, the Supreme Court’s precedents permit employers to use racial preferences to reduce a manifest underrepresentation of Black employees in a workforce, * Professor, Roger Williams University School of Law. © 2023, Michael J. Yelnosky. Thanks to Laurie Barron, Jared Goldstein, and Diana Hassel for commenting on drafts ofthis Essay. Special thanks to the editorial staff of GLJO for their terrific work. 1 Transcript of Oral Argument at 98, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) (No. 20-1199) (Justice Alito questioning Solicitor General Prelogar) . 2 600 U. S. 181, 230 (2023) (holding that Harvard College and the University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment by giving preference to minority applicants in order to assemble a diverse student body and realize the attendant educational benefits) . 3 See, e.g., Frans Johansson & Claire Hastwell, Why Diverse and Inclusive Teams Are the Engines of Innovation, GREAT PLACE TO WORK (June 1, 2023), [https://www.greatplacetowork.com/resources/blog/why](https://www.greatplacetowork.com/resources/blog/why)diverse-and-inclusive-teams-are-the-new-engines-of-innovation [[https://perma.cc/JLD4-RXM8](https://perma.cc/JLD4-RXM8)]. 4 See, e.g., Darreonna Davis, Two Law Firms Sued Over DEI Programs After Affirmative Action Overturned, FORBES (Aug. 23, 2023, 10:47 AM), [https://www.forbes.com/sites/darreonnadavis/2023/08/22/two-law-firms-sued](https://www.forbes.com/sites/darreonnadavis/2023/08/22/two-law-firms-sued)over-dei-programs-after-affirmative-action-overturned/?sh=67201fed1322 (discussing legal actions against two law firms’ diversity fellowship programs by the nonprofit American Alliance for Equal Rights) . 5 See Press Release, Bureau of Labor Statistics, Dep’t of Labor, The Employment Situation—December 2023, [https://www.bls.gov/news.release/pdf/empsit.pdf](https://www.bls.gov/news.release/pdf/empsit.pdf) (last visited Jan. 10, 2023) (citing more than 133 million full-time and more than 27 million part-time workers in the United States as of December 2023) . 6 This Essay focuses on the use of racial preferences because they were the focus ofSFFA. The lawfulness of gender-based prefe

FAQs

What question does the essay focus on after SFFA regarding employment decisions?

The essay examines whether an employer can lawfully use racial preferences in hiring or promotion, including for operational benefits and for reducing underrepresentation of Black employees.

How did the Supreme Court rule in SFFA?

The Court held that Harvard and UNC violated Title VI and the Equal Protection Clause by giving preferences to minority applicants to assemble a diverse student body and obtain related educational benefits.

What legal pathway does the essay identify as potentially helpful to employers?

It discusses the “manifest imbalance doctrine,” suggesting it could provide a route for employers wanting to use racial preferences to integrate their workforces by addressing underrepresentation.

Sep 13, 2026

Upload by Fahsai