vulnerable to future attacks.Review eligibility requirements and public-facing statements for DEI programs. Across claims, Article III standing continues to be the biggest obstacle for Do No Harm’s anti-DEI efforts, partly due to the difficulty in alleging a concrete injury for anonymous plaintiffs who have yet to apply—and be rejected from—diversity programs in healthcare. The group’s ability to establish standing in a particular case is highly dependent on the details of program eligibility. A review can help put your organization in the best position in the event of a lawsuit.Footnotes[1] 600 U.S. 181 (2023).[2] About Us, Do No Harm,https://donoharmmedicine.org/about.[3] See Alison Frankel, Pfizer Defends Fellowships Challenged by Law Firm Working to End Affirmative Action, Reuters (Oct. 26, 2022), https://www.reuters.com/legal/government/pfizer-defends-fellowships-challenged-by-law-firm-working-end-affirmative-action-2022-10-26/.[4] 42 U.S.C. § 18116(a).[5] 45 C.F.R. § 92.3(b).[6] 42 U.S.C. § 2000d.[7] Compl. ¶ 45, Do No Harm v. Pfizer Inc., No. 22-cv-7908 (S.D.N.Y. Sept. 15, 2022). The lawsuit also includes claims under Section 1981, Title VI, and the New York State and City Human Rights Laws.[8] Id. ¶ 31.[9] Id. ¶¶ 89-97.[10] Do No Harm v. Pfizer Inc.,646 F. Supp. 3d 490, 510 (S.D.N.Y. 2022). As the district court explained, a plaintiff may not bring a Title VI claim “with respect to any employment practice . . . except where a primary objective of the Federal financial assistance is to provide employment,” and courts have construed that statutory language as a “threshold requirement . . . that the employer be the recipient of federal funds aimed primarily at providing employment.” Id. (quoting 42 U.S.C. § 2000d-3). Section 1557, in turn, adopts the same “enforcement mechanisms provided for and available under such title VI.” 42 U.S.C. § 18116(a). The court therefore concluded that “[u]nder Section 1557’s plain language, the same threshold requirements under Title VI apply to

Therefore, it should come as no surprise that, on July 3, 2023, the Chica Project, the African Community Economic Development of New England, and the Greater Boston Latino Network filed a federal civil rights complaint against Harvard College, alleging that its practice of giving preferential treatment in the admissions process to applicants with familial ties to wealthy donors and alumni results in systemic preferential treatment of White applicants in violation of Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d). Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.The Complaint was filed with the U.S. Department of Education’s (DOE) Office for Civil Rights (OCR) by the Lawyers for Civil Rights. As the Complaint outlines:Each year, Harvard College grants special preference in its admissions process to hundreds of mostly white students – not because of anything they have accomplished, but rather solely because of who their relatives are. Applicants whose relatives are wealthy donors to Harvard, or whose parents are Harvard alumni, are flagged at the outset of Harvard’s admissions process and are granted special solicitude and extra “tips” throughout. The students who receive these special preferences (“Donor and Legacy Preferences”) are significantly more likely to be accepted than other applicants, and constitute up to 15% of Harvard’s admitted students.The students who receive this preferential t

ndra Day O’Connor’s concurrence in Grutter v. Bollinger – emphasized that use of racial classifications in admissions decisions were intended to be a “temporary matter” which was “limited in time.”Dissents authored by Justices Sonia Sotomayor and Ketanji Jackson emphasize the importance of affirmative action in American society, that the Court has overturned past precedent without admitting to doing so, and that an “originalist” take on the 14th Amendment would reflect that it was a post-Civil War amendment intended to allow Black Americans to be full participants in society.Justice Gorsuch’s concurrence discussing Title VI of the Civil Right Act of 1964 is most relevant to a discussion of environmental issues. Title VI requires that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. In Gorsuch’s view, “discrimination,” essentially means any disparate treatment amongst individuals on either an individual or aggregate level. From here, he concludes that “Title VI prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race, color, or national origin.” This “discrimination” is impermissible “without regard to any other reason or motive . . . .”What is EJ? The US Environmental Protection Agency (EPA) defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” It has also been a priority in various states. (See here.)We have blogged extensively regarding the Biden Administration’s EJ efforts and a primer on key efforts is available here. From our perspective, EJ is at the center of the

t in support of remedial action plans targeted to “make whole” historical discrimination. Consider developing voluntary affirmative action plans to support your diversity goal setting.Prepare for the Pipeline: If colleges and universities become less diverse, employers will see that in the diversity of the talent pool available. Consider ways to legally enhance opportunities and the pipeline more broadly, in light of the challenges that could come.Train for Compliance, and Be Aware of Changing State Requirements. Consider updating your diversity, anti-discrimination, anti-harassment, and/or implicit bias trainings, particularly for hiring managers/recruiters/members of your compensation team. In developing trainings, keep aware of changing local laws. The consolidated opinion of the Court can be found at https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf. For the purposes of this Alert, we provided citation to the page numbers as listed on the document at this link.Title VI, 42 U.S.C. § 2000d et seq.Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003).Fisher v. Univ. of Texas at Austin, 579 U.S. 365, 136 S. Ct. 2198, 195 L. Ed. 2d 511 (2016).SeeStudents for Fair Admissions at 36-39 (disputing the dissents’ reading of Bakke, Grutter, and Fisher). Id. at 21 (citing Grutter, 539 U.S., at 343).Id. at 30.Id. at 37.Id. at 39.Id. at 23.Id. at 35.Students for Fair Admissions at 25, 29-30.Id. at 27-28.Id. at 7-9.United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979).Johnson v. Transportation Agency, Santa Clara Cnty., Cal., 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987).See, e.g., 29 C.F.R. § 1608 (EEOC guidelines for formal Affirmative Action Plans); see also . On Thursday, the EEOC Chair issued a statement reflecting the point that “[d]iversity helps companies . . .” and the affirmative action decision “does not address employer efforts to foster diverse and inclusive workforces or to engage the tal

case in the employment context, diversity initiatives should be designed to expand opportunity for underrepresented groups without also negatively impacting hiring and advancement opportunities for those in other groups. Thus, employers should focus on expanding their sourcing and recruiting efforts to achieve a diverse pool, rather than using programs or other diversity strategies that consider race, ethnicity or sex at any point in the selection process.The Court’s Affirmative Action RulingFor years, Harvard’s and the University of North Carolina (UNC)’s admissions programs have used race as a plus factor when making admissions decisions. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Nos. 20-1199, 21-707 (the “Harvard Opinion”), the United States Supreme Court granted certiorari to consider whether UNC’s and Harvard’s admissions programs violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 USC § 2000d (“Title VI”), respectively.The Equal Protection Clause provides that no State “shall deny to any person … the equal protection of the law.” Under the Equal Protection Clause, race discrimination in public education has been unconstitutional since 1950, which includes discrimination by public universities like UNC. Private institutions like Harvard that receive federal funding for their programs and activities are also prohibited from engaging in race discrimination under Title VI. As an initial matter, and relying on its prior precedent, the Court stated that discrimination by an academic institution that violates the Equal Protection Clause also violates Title VI. Accordingly, the Court analyzed both UNC’s and Harvard’s admissions programs under the Constitution’s Equal Protection Clause.After reiterating that the “core purpose” of the Equal Protection Clause is to do away with governmentally-imposed race discrimination, the Court applied the two-part “strict scrutiny” test to decide

ellows of Harvard College, 261 F.Supp.3d 99, 105-06 (D. Mass 2017), aff’d, 980 F.3d 157 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (2022) (No. 20-1199) (argued Oct. 31, 2022); Do No Harm v. Pfizer, Inc., No. 1:22-cv-07908, 2022 WL 17740157, at *1, *3-4 (S.D.N.Y. Dec. 16, 2022); Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1114 (11th Cir. 2022).[3] Do No Harm, 2022 WL 17740157, at *3-4; Speech First, Inc., 32 F.4th at 1114.[4] Plaintiff Do No Harm’s Reply in Support of Its Motion for Preliminary Injunction at 4, Do No Harm, 2022 WL 17740157 (No. 1:22-cv-07908).[5] Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).[6] See Do No Harm, 2022 WL 17740157, at *7-8, *10 (holding that at least one member must be named to establish associational standing and collecting cases).[7] Do No Harm, 2022 WL 17740157, at *1-2, *6-10.[8] Plaintiff Do No Harm’s Notice of Appeal, Do No Harm, 2022 WL 17740157 (No. 1:22-cv-07908), appeal docketed, No. 23-15 (2d Cir. Jan. 4, 2023).[9] 42 U.S.C. § 2000d et seq. (Title VI); 42 U.S.C. § 1981 (Section 1981); 42 U.S.C. § 2000e et seq. (Title VII).[10] 42 U.S.C. § 2000d-3.[11] See, e.g., Do No Harm, 2022 WL 17740157, at *2-3; First Amended Class-Action Complaint at 1, Lowery v. Texas A&M Univ., No. 4:22-cv-03091 (S.D. Tex. Dec. 23, 2022).[12] See, e.g., First Amended Class-Action Complaint at 12-13, Lowery, No. 4:22-cv-03091 (S.D. Tex. Dec. 23, 2022); Class-Action Complaint at 19-21, Stewart v. Texas Tech Univ. Health Scis. Ctr., No. 5:23-cv-00007 (N.D. Tex. Jan. 10, 2023).[13] See, e.g., Do No Harm, 2022 WL 17740157, at *10-12 (holding that the associational plaintiff lacked standing because it failed to show that at least one identifiable member was “able and ready” to apply for the challenged fellowship program); Correll v. Amazon.com, Inc., No. 3:21-cv-01833, 2022 WL 5264496, at *2-4 (S.D. Cal. Oct. 6, 2022) (holding that the individual plaintiff lacked standing to challenge Amazon’s supplier diversity initiatives because he failed to

tain number of board seats be filled by members of underrepresented communities (racial minorities and members of the LGBT community) and women is currently being briefed before a district court. The court has already dismissed the claim challenging the female representation requirement, but the challenge to the numerical mandate for board members from underrepresented communities remains ongoing. See Alliance for Fair Board Recruitment v. Weber, No. 2:21-cv-01951 (C.D. Cal.).[4] Alliance for Fair Board Recruitment v. SEC, No. 21-60626 (5th Cir. Aug. 29, 2022).[5] Order, Saadeh v. New Jersey State Bar Ass’n, No. MID-L-006023-21 (N.J. Super. Ct. Law Div. Nov. 9, 2022).[6] In its federal complaint challenging California’s board diversity mandates, the Alliance for Fair Board Recruitment brought a Section 1981 claim in addition to the Equal Protection claims that only apply to state actors. See Complaint ¶¶ 56–58, Weber, No. 21-cv-01951 (C.D. Cal. July 12, 2021), ECF No. 1.[7] See, e.g., 42 U.S.C. § 2000d (“Title VI”).[8] See Jeff Green, Corporate America’s Love For The Rooney Rule Is Under Scrutiny, Bloomberg Law (Mar. 21, 2022), https://news.bloomberglaw.com/daily-labor-report/corporate-americas-love-for-the-rooney-rule-is-under-scrutiny; Lila MacLellan, More Than 90% Of S&P 500 Boards Disclose Racial Representation. But The Numbers Have Barely Budged, Fortune (Nov. 2, 2022), https://fortune.com/2022/11/02/most-sp-500-boards-disclose-diversity-representation/ (Fifty percent of S&P 500 companies said “they’ve adopted a Rooney Rule-like policy mandating that boards include executives from underrepresented groups in candidate pools.”).[9] Saadeh, supra note 5, Order at 12-13 quoting N.J.S.A. 10:5-12(f)2.[10] Crest – Underrepresented Communities, 2022 WL 1073294, at *5–6

” Citing the Supreme Court’s decision in Regan v. Taxation with Representation, Bennett extended the Court’s analysis in that case to Title IX, quoting that “[b]oth tax exemptions and tax-deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income . . .”Judge Bennett considered the analogue of Title VI in his decision, “[T]ax exempt organizations are subject to the requirements under Title VI of Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.,” and noted that Title IX was modeled after Title VI. The court pointed to McGlottenv.

In fact, the case affects potential results under four statutes that Congress has enacted pursuant to its Spending Clause authority that prohibit recipients of federal funds from discriminating with respect to matters including race, color, national origin, sex, disability, or age. See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116. The Court previously held that victims of intentional violations of these statutes may bring private lawsuits seeking to recover, among other things, compensatory damages.

BackgroundTitle VI of the Civil Rights Act of 1964 provides in part that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. “Federal financial assistance” is any federal program, project, service, or activity the federal government provides that directly assists domestic governments, organizations, or individuals to carry out a public purpose of support or stimulation authorized by the United States instead of acquiring property or services for the direct benefit or use of the United States government. See generally 31 U.S.C. §§ 6304.8, 6305.Thus, entities which or individuals who receive federal financial assistance from the federal government cannot treat persons differently because of their race, color, or national origin directly or through contractual or other arrangements.