Ally Coll

Volume 27.2 (download PDF)

Abstract

This term, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court invalidated Harvard and the University of North Carolina’s (“UNC”) race-conscious admissions programs as unconstitutional under the Fourteenth Amendment’s Equal Protection Clause and Title VI of the Civil Rights Act of 1964. In a significant departure from past precedent, the Court concluded that Harvard and UNC’s programs “cannot be reconciled with the guarantees of the Equal Protection Clause.” In anticipation of and in the wake of this decision, individuals and organizations who oppose similar workplace diversity programs brought lawsuits challenging the legality of various corporate diversity, equity, and inclusion (“DEI”) programs under a range of federal civil rights statutes. Lower courts considering these claims have thus far largely declined to adjudicate them on the merits, instead dismissing them for lack of Article III standing. While much attention has been placed on the implications of the Court’s substantive reasoning in Students for Fair Admissions for corporate DEI programs, this Article argues that the Court’s standing analysis this term, both in the affirmative action case and in other key decisions, is equally important to the outcome of pending challenges to such initiatives.

The Article highlights the Court’s historic willingness to relax standing requirements in discrimination cases brought by dominant group plaintiffs, while considering similar claims brought by historically marginalized plaintiffs to be non-cognizable. The Article argues that the Court’s continuation of that approach this term has significant implications for challenges to corporate DEI programs, and that its failure to apply consistent standing requirements to race discrimination claims threatens the continued effectuation of the Fourteenth Amendment’s guarantee of equal protection under the law.