On June 29, 2023, the Supreme Court issued its blockbuster opinions in two cases involving race-based preferences in college admissions. In lawsuits brought by a group called Students for Fair Admissions against Harvard College and the University of North Carolina, the schools had relied on the concept of promoting diversity to justify their admissions policies, which used race as a factor in selecting students.

The Court rejected the diversity interest asserted by the colleges, and its reasoning was broad. It wrote, “Eliminating racial discrimination means eliminating all of it.” The Court also firmly rejected racial stereotypes of all kinds, noting that Harvard and UNC had “concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin.” Once and for all, the Court rejected that mentality: “Our constitutional history does not tolerate that choice.”

In a concurrence, Justice Gorsuch, joined by Justice Thomas, recognized the applicability of the decision to the employment context. Justice Gorsuch hearkened back to his opinion in a 2020 case called Bostock v. Clayton County, Georgia—which held that discrimination against homosexuals and some transgender individuals was barred by federal law—to note that federal civil rights laws contained flat bans on certain forms of discrimination, including sex and race discrimination. There are no exceptions, he wrote, for good intentions or otherwise. As he stated, “judges have never been entitled to disregard the plain terms of a valid congressional enactment based on surmise about unenacted legislative intentions.”

Against that backdrop, on July 13, 2023, thirteen Republican Attorneys General, led by Jonathan Skrmetti of Tennessee and Kris Kobach of Kansas, wrote a letter to the Chief Executive Officers of Fortune 100 companies, alerting them to the consequences of the Supreme Court’s decisions in the SFFA cases. The letter purports to remind employers that they must refrain from racially discriminating against employees and in their contracting relationships, even if they do so in the name of “diversity, equity, and inclusion.”

The letter focuses on two federal civil rights statutes: (1) Title VII of the Civil Rights Act of 1964, which bars employers from engaging in discrimination based on race in most instances; and (2) 42 U.S.C. § 1981, which bars race discrimination in contracting, even between private parties.

According to the letter, these statutes, along with the decisions in the SFFA cases, firmly establish that some large companies have recently been violating federal civil rights laws, and must cease immediately. The letter cites examples like Microsoft’s quota on the number of black-owned approved suppliers of Microsoft products, and Goldman Sachs’ announcement in 2020 that it would be setting racial quotas on the hiring of new analysts and entry-level associates.

In response, the Chairs of the Democratic Attorneys General Association wrote their own press release, published on July 14, criticizing the letter of the thirteen GOP Attorneys General. They wrote, “To be clear: it is legal for businesses to be responsive to their workforce’s wishes and concerns through diversity programs and initiatives.” While the letter does not specifically answer the statutory or legal analysis offered by the Republican Attorneys General, it accuses those officials of intimidating corporations “with their fanatical quest to neutralize thoughts, actions, and opinions of those who do not kowtow to their backwards philosophies.”

Who is right? That remains to be seen, but the answer will likely rely on a case-by-case consideration of the concrete actions of an employer. If an employer truly makes job offers to prospective employees using race as a factor (or terminates employees using race as a factor), such a decision would likely run afoul of Title VII. On the other hand, if an employer decides to promote its brand and recruit more heavily in certain college job fairs based on the racial demographics of the college, that may be a closer call.

Interestingly, neither letter directly addresses employer Diversity, Equity, and Inclusion (DEI) training programs for employees. These trainings often involve anti-Caucasian statements about “whiteness” and “white fragility,” and they may recommend to employees that they read books that advocate for anti-Caucasian discrimination, such as How to Be an Anti-Racist by Ibram X. Kendi. Some have urged employees to be “less white.” Our firm, Mountain States Legal Foundation, has brought suit against the Colorado Department of Corrections, alleging that the state prison system’s DEI training program created a “hostile work environment” under Title VII. While the complaint was initially dismissed, our appeal is pending before the Tenth Circuit Court of Appeals.

Clearly, the arguments presented by the competing letters are just the beginning. At the end of the day, the breadth of the SFFA decisions—and their relevance to the legality of DEI programs under Title VII and Section 1981—will need to be established with further litigation. We shall soon see which way the courts go on these questions.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.