Organizations Receiving or Administering Federal Funds Should Prepare for Supreme Court’s Ruling on Using Race as a Plus Factor

By Clifford S. Davidson

The U.S. Supreme Court shortly will decide two cases, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. and Students for fair Admissions Inc. v. University of North Carolina, Nos. 20-1199 & 21-707. While both cases involve the use of race as a plus factor in college admissions, the Supreme Court could author an opinion reaching far beyond that context. For example, the Court could hold that any actions to increase racial diversity — whether explicitly race-based or race-neutral — by a state actor or a private actor receiving federal funds, could violate the Equal Protection Clause and Title VI of the Civil Rights Act of 1964.

For now, we are left to wonder as to the breadth of the Court’s ruling, but clients who receive federal funds, or who are themselves state actors potentially liable under 42 U.S.C. § 1983, should prepare to re-evaluate policies and procedures once the Supreme Court rules. Cliff Davidson, and several other Snell & Wilmer attorneys, have significant experience in advising and litigating Equal Protection and Title VI issues.