Equal Protection Initiative

LDF’s Equal Protection Initiative (EPI) is aimed at fully realizing the U.S. Constitution’s promise of equal protection under law by safeguarding, expanding, and deepening efforts to remove and remediate barriers to opportunity for Black people in the economy, our educational systems, and other areas through race-conscious and race-neutral means.  

For over eight decades, the Legal Defense Fund (LDF) has been at the forefront of shaping the legal meaning of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, most notably through its watershed victory in Brown v. Board of Education. LDF has also played a role in every Supreme Court case involving affirmative action in higher education, including Regents of the University of California v. BakkeGrutter v. BollingerFisher v. University of Texas, and most recently Students for Fair Admissions v. President and Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (SFFA v. Harvard/UNC). Since its founding, LDF has been a leader in the decades-long struggle for equal educational and economic opportunities, from its early efforts to desegregate K-12 schools, colleges, and universities and equalize workplaces throughout the Jim Crow South to the passage of the Civil Rights Act of 1964 and ongoing enforcement of that historic legislation. Through litigation and policymaking, LDF has endeavored to dismantle segregation and break down barriers to opportunity in education, housing, employment, and other areas that shape the ability of Black people to thrive and reach their full potential. In the wake of the Supreme Court’s devastating June 29, 2023 decision in SFFA v. Harvard/UNC, EPI seeks to defend and advance the proper interpretation of the Equal Protection Clause and anti-discrimination law to ensure that Black people and other people of color can turn to our judicial system to champion their equality.

SFFA v. Harvard/UNC FAQ

The Supreme Court's affirmative action decision, explained

On June 29, 2023, the U.S. Supreme Court ruled that the race-conscious admissions policies of Harvard and the University of North Carolina (UNC) were unlawful under federal law. The Court found that Harvard and the UNC’s affirmative action programs violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. We compiled a backgrounder and FAQ to help you learn more about the case, the Court’s decision, and what it means for students. 

Economic Justice

Guidance

Guidance for Employers, Businesses, and Funders

The Economic Imperative to Ensure Equal Opportunity

Despite essential civil rights laws such as the Civil Rights Act of 1866 and the Civil Rights Act of 1964, systemic inequalities based on race, gender, and LGBTQ+ status persist in all aspects of American life. The need to secure full equality, as envisioned in Brown v. Board of Education, is particularly urgent as the United States becomes increasingly diverse. Yet after the Supreme Court’s June 2023 decision in SFFA v. Harvard/UNC, which struck down the use of race as a tip in higher education admissions, we are witnessing an unprecedented attack on measures that serve to advance equal opportunity across society. These attacks extend beyond the scope of the opinion and higher education to areas including employment, contracting, and grantmaking.  

At this critical moment, employers, businesses, and funders have a moral, legal, and economic obligation to sustain a deep and substantive commitment to initiatives that advance racial equity and foster greater diversity and inclusion. LDF’s Guidance for Employers, Businesses, and Funders after SFFA v. Harvard/UNC explains what employers, businesses, and funders can do to break down barriers to opportunity following the Supreme Court’s decision. As LDF explains in its guidance, employers continue to have “numerous lawful means of creating more diverse and inclusive workplaces and meeting their obligation to ensure equal opportunities for all.” 

To support important, ongoing efforts to advance DEIA and equal opportunity, LDF offers this general guidance to employers and funders as they navigate the current legal landscape in the aftermath of the SFFA decision: 

Communicate the value of diversity and equal opportunity to their workforce, shareholders, and the public at large.

Build robust pipelines to identify talented individuals of all backgrounds.

Expand recruitment efforts to ensure that their applicant pool reflects the diversity of the labor market and that it does not unjustifiably exclude qualified individuals.

Establish aspirational goals to address underrepresentation of historically underrepresented groups through lawful and effective means, such as targeted recruiting.

Diligently comply with anti-discrimination laws.

Remove or significantly limit criminal history and credit checks, which can unfairly screen out qualified individuals and have a disparate impact on Black and Latinx candidates.

Foster an inclusive work environment that values the contributions of all employees.

Support Employee Resource Groups (ERGs) and Mentorship Programs that help all employees reach their full potential.

Ensure that firms owned by people of color have a meaningful opportunity to compete for your business.

Collect data and measure progress on key diversity and inclusion metrics to accurately assess efforts to ensure equal opportunity.

Conduct an audit to identify persistent barriers to equal opportunity.

Simplify the application process for funding to reduce burdens on promising applicants with limited resources and experiences with grants.

Guidance

The Importance of Educating and Employing a Diverse Workforce

The U.S. Supreme Court’s decision in SFFA v. Harvard/UNC makes it even more imperative for colleges and universities to identify alternative means to ensure a diverse student body and, thus, a diverse work force.  Companies with pro-diversity policies are more innovative, even in periods of economic downturn. Diverse companies are also more successful and better serve customers. In this report, LDF outlines research demonstrating the economic and social benefits of diversity in education and employment. 

This guide outlines why educating and employing a diverse workforce is critical for economic and academic success. 

Guidance

Talking Points for the Business Community

Diversity is the greatest strength of our multi-racial democracy — and essential to the success of our economy. We all have an obligation to continue to foster diversity and inclusion in the workplace and create opportunities for all people to succeed. Students of all racial backgrounds benefit from racially diverse learning environments and are better equipped to succeed in diverse workplaces and serve a diverse clientele. It is imperative that we support and implement policies that help identify, cultivate, and support all students and workers in having the opportunity to thrive. This document outlines the business case for increasing access to employment opportunities. 

Fostering a Diverse Talent Pipeline and Targeted Funding in an Uncertain Climate Webinar

"Employers and other private entities have many lawful tools at their disposal — including many DEIA programs—to ensure that they are offering equal opportunity to all."

- Amalea Smirniotopoulos

Senior Policy Counsel and Co-Manager of the Equal Protection Initiative

Education

LDF Report

The racial justice landscape after the SFFA Cases

This comprehensive report offers recommendations for advancing equal educational opportunities to help colleges and universities navigate the Supreme Court’s affirmative action decision in SFFA v. Harvard/UNC. LDF and five partner civil rights groups delivered the report with a personal letter to over 100 college and university leaders urging implementation of measures to ensure educational opportunities are attainable for all. 

The Supreme Court’s weakening of affirmative action underscores the urgent need to promote equal educational opportunities in higher education in the current landscape through other lawful means. This report makes the following recommendations:

Diligently comply with anti-discrimination laws.

Reimagine and retool admissions policies in higher education.

Expand recruitment efforts and build robust pipelines.

Support historically marginalized and underrepresented students on campus.

"Don't give up hope.  There are so many of us working so hard to dismantle the unfair barriers to equal opportunity that deprive many students of a fair chance to apply for college."

- Michaele Turnage Young

Senior Counsel & Co-Manager of the Equal Protection Initiative

Let’s be clear: Even with the constraints of the Supreme Court’s ruling, colleges and universities are still able to consider students’ experiences with race.

It is vitally important that colleges and universities continue to consider applicants in the full breadth of their humanity and lived experience, including experiences that pertain to their racial and ethnic background.

LDF Original Content

Five students share why ensuring diversity in education and beyond is so important to them.

Justice Above All Podcast

Diversity fuels innovation, it fosters empathy, and it generates creativity. Hosted by Dr. Kesha Moore, this episode explores how affirmative action can create a thriving multiracial, multiethnic democracy.

Our Work

Litigation and Policy

Litigation

SFFA v. Harvard/University of North Carolina

LDF represented 25 Harvard student and alumni organizations—comprised of more than 18,000 Asian American, Black, Latinx, Native, and white Harvard students and alumni—as amici curiae in the Harvard admissions case from 2018 until the case was closed in 2024.  LDF presented members of our client organizations as witnesses at trial; submitted multiple briefs, declarations, and other evidence on their behalf; delivered oral arguments before the district court and the U.S. Court of Appeals for the First Circuit; and submitted an amicus curiae brief to the U.S. Supreme Court, arguing that the limited consideration of race in admissions advanced equal opportunity, particularly where many applicants’ experiences were inextricably intertwined with race.  LDF also represented itself and the NAACP as amici curiae in Supreme Court briefing in the UNC case. 

While the Supreme Court’s decision was a stark departure from nearly 45 years of precedent, it nevertheless declared that “nothing in [its] opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” In what may have been an implicit concession to our clients’ argument that SFFA’s requested remedy – eliminating all signs of race from the admissions process – would itself have an acute, foreseeable, and racially discriminatory disparate impact on applicants of color by censoring their experiences, the Court recognized that what applicants share about their experiences with race could indicate “courage and determination,” or “that student’s unique ability to contribute to the university.” 

Justice Sotomayor quoted from LDF’s brief in the Harvard case in her dissent, noting: “’Because talent lives everywhere, but opportunity does not, there are undoubtedly talented students with great academic potential who have simply not had the opportunity to attain the traditional indicia of merit that provide a competitive edge in the admissions process.’”  Citing to LDF’s brief in the UNC case, Justice Sotomayor explained: “The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity, not rhetorical flourishes about color blindness.

Litigation

SFFA v. West Point and SFFA v. U.S. Naval Academy

In SFFA v. Harvard/UNC, the Supreme Court noted in a footnote that its decision did not affect race-conscious admissions at the U.S. military academies, which it said had “potentially distinct” interests that separate them from other colleges. SFFA has since sued West Point and the U.S. Naval Academy, alleging that their limited consideration of race in admissions is unconstitutional. LDF filed an amicus brief with the ACLU and the National Association of Black Military Women defending the military academies’ programs. 

Litigation

Coalition for TJ v. Fairfax County School Board

The Coalition for TJ challenged the constitutionality of the race-neutral admissions policy of the Thomas Jefferson High School for Science and Technology (“TJ”) in Fairfax County, VA.  After TJ removed a $100 application fee, nixed its admissions test requirement, and decided to admit the top 1.5% of eligible 8th graders from each middle school, a record number of Black and Latinx students applied and were admitted to the school. The number of economically disadvantaged students also increased substantially, from 0.62% to 25.09%.

LDF, Asian Americans Advancing Justice – AAJC, LatinoJustice PRLDEF, and Arnold & Porter LLP served as co-counsel for the Virginia State Conference of the NAACP; Hamkae Center; Asian American Leadership, Empowerment, and Development; CASA Virginia; Hispanic Federation; and TJ Alumni for Racial Justice, on whose behalf they filed multiple amicus briefs urging the district and appellate courts to declare that a race-neutral policy designed to equalize access to TJ was legally permissible.  The U.S. Court of Appeals for the Fourth Circuit agreed.  The U.S. Supreme Court declined to review the Fourth Circuit’s decision. 

Litigation

American Alliance for Equal Rights v. Fearless Fund Management, LLC

The American Alliance for Equal Rights sued the Fearless Fund, alleging that its Strivers Grant program, which gave grants to Black women entrepreneurs in an effort to address the racial disparity in venture funding, violates Section 1981 by discriminating against women who are not Black. Although 42% of women who opened new businesses between 2014 to 2019 were Black, Black women entrepreneurs receive just 0.34% of venture capital funding and are refused funding at three times the rate of white business owners. LDF joined an amicus brief that argues that Section 1981 allows for these types of remedial philanthropic programs. 

Litigation

Association for Education Fairness v. Montgomery County Board of Education 

This lawsuit alleges that race-neutral, evidence-based changes to the admissions policy for Montgomery County, MD’s magnet middle schools are unconstitutional.  In opposition to the plaintiff in this case, LDF, Asian Americans Advancing Justice-AAJC, Latino Justice PRLDEF, and Ballard Spahr LLP have filed multiple briefs and delivered oral argument before the U.S. Court of Appeals for the Fourth Circuit on behalf of the Montgomery County Branch of the Maryland State Conference of the NAACP; Montgomery County Progressive Asian American Network; Identity, Inc.; CASA, Inc.; and Asian American Youth Leadership, Empowerment, and Development, arguing – among other things – that the court should adhere to the proper interpretation of the Equal Protection Clause and reject the plaintiff’s arguments.  On July 29, 2022, Judge Xinis dismissed the Amended Complaint for failure to allege disparate impact and failure to allege discriminatory intent, expressly noting that she reconsidered her prior analysis of the disparate impact issue based on our arguments.

Litigation

Christa McAuliffe Intermediate School PTO v. Bill de Blasio

In this lawsuit challenging the constitutionality of race-neutral changes to the admissions process for New York City’s specialized high schools, LDF has filed multiple briefs and presented oral argument before the U.S. Court of Appeals for the Second Circuit on behalf of intervenors the Coalition for Asian American Children and Families, Desis Rising Up and Moving, Hispanic Federation, and Teens Take Charge along with Latino Justice, ACLU, NYCLU, and Brown Rudnick LLP. We have urged the courts to adhere to a faithful interpretation of Equal Protection doctrine, declare that the race-neutral policy is constitutional, and explain that the policy’s use of income is not an unlawful proxy for race.

Although it is well established that aspirational goals and the collection and dissemination of demographic data are lawful practices that serve important anti-discrimination and informational purposes, the plaintiffs in Alliance for Fair Board Recruitment v. Securities and Exchange Commission seek to change the law by challenging Nasdaq’s SEC-approved Board Diversity Rule, which requires Nasdaq-listed companies to disclose aggregate, voluntarily-disclosed demographic information about their board of directors and sets optional objectives under which companies should have at least one woman director and at least one director who is LGBTQ+ or an underrepresented person of color or explain why they did not meet the objective.  NASDAQ adopted the rule in response to demand from investors, who understand that there is well-documented evidence that companies with a diverse group of leaders yield better economic returns.  In its amicus brief, LDF argues that the Board Diversity Rule does not violate the Fifth Amendment’s Equal Protection guarantee and plays a vital role in financial markets.

Policy

U.S. Department of Commerce’s proposed Business Diversity Principles.

In February 2024, LDF submitted a comment in support of the U.S. Department of Commerce’s proposed Business Diversity Principles, urging the agency to focus on evidence-based programs that break down barriers to opportunity and explaining how such programs help employers comply with existing civil rights laws and benefit from the contributions of people from all backgrounds.

Policy

LDF Letter Urging the EEOC to Investigate Potentially Racist Hiring Practices at AutoNation and Genuine Parts Company

As employers roll back policies that helped overcome discrimination, foster diverse and inclusive workplaces, and ensure equal employment opportunities, vigorous enforcement of Title VII of the Civil Rights Act of 1964 is more vital than ever. LDF sent a letter to the U.S. Equal Employment Opportunity Commission asking them to investigate two U.S. companies for employment discrimination after researchers discovered that white applicants were more than 30 percent more likely to be interviewed than Black applicants with similar qualifications.

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