Skip to Content

The Legal State of Race: Looking Ahead to 2023

Tue November 8, 2022 News

The U.S. Supreme Court is, once again, widely expected to strike overturn longstanding precedent and do away with race-conscious admissions policies in higher education. In 1978 (UC Regents v. Bakke), 2003 (Grutter v. Bollinger), and 2016 (Fisher v. UT Austin), the Court affirmed universities’ right to consider applicants’ race as part of a holistic review process. The current conservative supermajority’s hostility to race-conscious admissions policies was on display in a five-hour oral argument, and absent an unprecedented shift in the Court’s composition, race-conscious admissions policies appear to be on their way out come June 2023.

Court watchers further anticipate that the conversative supermajority’s reasoning will not be restrained to higher education, but will take aim at the military, private corporations, and broader government as well. Further, while Florida’s Stop W.O.K.E. Act has been blocked by the District Court for the Northern District of Florida (as of this writing), the Eleventh Circuit Court of Appeals appears poised to reverse and permit the legislation to take effect. Critics argue the Stop W.O.K.E. Act unlawfully limits an employer’s right to address employees regarding workplace culture, mutual respect, racism, and implicit bias. The Florida legislature disagrees.

The Eleventh Circuit will likely render a decision on the legality of the Stop W.O.K.E. Act before the Supreme Court strikes down affirmative action. Practically speaking, employers of all types and sizes would do well to conduct an inventory of their policies, procedures, and practices as they relate to Diversity, Equity, and Inclusion efforts.

Advisors to multi-state corporations should make any out-of-state leadership aware of the State of Florida’s current posture on “culture wars” issues and the likely turbulence ahead of the 2024 election cycle.

This publication is for general information only and intended for clients and friends of Donnelly + Gross.  It should not be relied upon as legal advice as the law related to each situation varies. The sharing of this information does not establish a client relationship.