Affirmative action case could bring employment considerations into question

The use of affirmative action in UNC admissions processes has been under review since Students for Fair Admissions filed a lawsuit against the University in November 2014. While this case deals directly with the consideration of race in public university admissions processes, it is unclear how the outcome will affect affirmative action for employment.

SFFA v. University of North Carolina was brought to the U.S. Supreme Court for oral arguments on Oct. 31. The private organization alleged that UNC violated the equal protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964 by considering race in admissions.

Jeffrey M. Hirsch, a law professor at UNC, specializes in labor and employment law. He said the Supreme Court has not dealt with an employment-related affirmative action case in decades.

He also noted the distinction between affirmative action in the public and private sectors of employment, a distinction that also matters in cases of higher education.

“I think the public sector employers are already more limited in the type of affirmative action that they can engage in, and in particular, whether they can engage in affirmative action at all, as opposed to the education context, or at least higher ed,” Hirsch said.

Traditionally, in the employment context, diversity has not been a justification for affirmative action, according to Hirsch. Instead, it has been used as a remedial option.

“In other words, because some of the original affirmative action cases, or cases where an employer sometimes along with the union even, have been engaging in sort of repeated pernicious discrimination, even sometimes in contrary to a court order,” he said.

According to Hirsch, if the Court's ruling is relatively narrow, marking the end of race-conscious admissions in higher education, employment policy would be largely unaffected. However, if the court ruled more broadly, favoring a "colorblind" policy, the days of remedial affirmative action in employment would be numbered.

“Those are kind of two sides, two ends of the spectrum for how the decision can play out and we could have something somewhere in the middle, where it's a little more confusing, about whether they would consider affirmative action as a remedy in any case, or just some cases,” Hirsch said.

Christina Huang and Joy Jiang, two of the co-directors for UNC for Affirmative Action, spoke outside the Supreme Court on Oct. 31. The coalition was formed in late September 2022 to educate students and defend affirmative action. 

Jiang said affirmative action creates a field of equity so that all students can be represented and seen.

“I'm a first-gen student, and I don't want it to end here," they said. "I want my kids to go to college. I want my sisters to go to college. I want my cousins and everyone who was able to connect to me in any sort of way.”

In regards to the University's case, Huang said she thinks it is closely tied to employment. 

“I think this case is so big because it sets a precedent, and I mean, even looking at education, like the pipeline from education to career, if less people are getting educated, less people of color are being educated. Then they're less likely to get those occupations, and there's gonna be less diversity in the workforce,” she said.

In a statement to The Daily Tar Heel, UNC Media Relations said, "the case currently before the Supreme Court relates to undergraduate admissions policy, not hiring. We do not anticipate the decision will have an impact on recruitment or retention of faculty and/or staff."

In closing, Jiang said they, Huang and the rest of the coalition love being UNC students.

“At any opportunity we are given, we'd want that for everybody else, to be given the opportunity to be a UNC Tar Heel,” Jiang said. “And it's really important to us. Especially with the liveliness of UNC, it comes from the student body and the population of students here at Carolina.”

The court’s ruling on the University’s affirmative action policy will likely be released in early 2023.

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