New England Biz Law Update
U.S. Sen. Tom Cotton sent a letter warning more than four dozen law firms across the country about their race-based hiring programs. (ASSOCIATED PRESS)
Fifty-one law firms across the country have been targeted by a U.S. senator’s warning that race-based hiring programs pose a greater risk of violating federal civil rights laws in the wake of the U.S. Supreme Court’s recent decision in the Harvard affirmative action case.
“Federal law has long prohibited treating employees differently because of their race,” Arkansas Sen. Tom Cotton wrote in identical letters sent on July 17. “Employers should take to heart the Supreme Court’s recent declaration that ‘eliminating racial discrimination means eliminating all of it.’”
Cotton didn’t stop there, warning that Congress will increasingly use its oversight powers — and private individuals will increasingly use the courts — to “scrutinize the proliferation of race-based employment practices.”
The letter ended on an ominous note:
“To the extent that your firm continues to advise clients regarding [diversity, equity and inclusion] programs or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.”
The Supreme Court’s June 29 decision in Students for Fair Admissions v. Harvard College addressed consolidated appeals involving separate challenges to the admissions programs maintained by Harvard and the University of North Carolina. A six-justice majority of the court ruled that the schools’ use of racial preferences to achieve diversity goals violated the Equal Protection Clause of the 14th Amendment.
Chief Justice John G. Roberts authored the majority opinion, pronouncing as a guiding principle that “[e]liminating racial discrimination means eliminating all of it.”
In finding that the schools’ race-based admissions programs violated equal protection, Roberts observed that the court in the past had permitted such programs only within the confines of narrow restrictions.
“University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end,” Roberts wrote. “Respondents’ admissions systems — however well-intentioned and implemented in good faith — fail each of these criteria.”
Roberts made clear that nothing in the court’s opinion should be construed as prohibiting universities from considering an applicant’s personal story of how race affected his or her life. But Roberts was careful to add certain caveats.
He wrote that a “benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race.”
