November 13, 2020
Acknowledging employers’ reliance on a “diverse hiring pool,” a two-judge panel of the First Circuit rejected a challenge to Harvard’s race-conscious admission process, setting up a likely review by the U.S. Supreme Court.
Students for Fair Admissions claimed the process unlawfully discriminates against Asian Americans. The claim had previously been rejected by a federal district court. Plaintiffs immediately indicated their intention to seek Supreme Court review.
The makeup of the Supreme Court has changed considerable since previous rulings, which have generally been permissive of race-conscious procedures. The law has been developed through a long line of cases over the past several decades, and has often been criticized as being somewhat unclear. The 6-3 conservative majority on the High Court makes the outcome unpredictable if it takes up the case.
Employer interest in the case: Large companies have a strong interest in the outcome of the case for two reasons. First, as noted in the First Circuit opinion, “the business community has communicated its interest in having a well-educated, diverse hiring pool both in this case and in the prior governing Supreme Court cases.” Second, any decision imposing new restrictions on race-conscious admissions processes in academia could also be used to support claims against employers’ race-conscious hiring and promotion processes.