After the 2023 ban, affirmative action is legal only in a narrow set of situations: private employers can adopt voluntary, temporary plans under Title VII to correct a documented imbalance in a traditionally segregated job category; federal contractors still have affirmative action obligations toward veterans and people with disabilities; college applicants can write about how race has shaped their lives in their own essays; and race-neutral strategies like socioeconomic preferences and top-percentage admissions remain fully permitted. Almost everything else people used to call affirmative action, including race-conscious college admissions and the federal contractor affirmative action program, is no longer allowed.
What the Ban Actually Covers
Two events did most of the work. In June 2023, the Supreme Court decided Students for Fair Admissions v. Harvard (consolidated with a companion case against the University of North Carolina) and held that race-conscious admissions programs at both universities violated the Equal Protection Clause.1Supreme Court of the United States. Students for Fair Admissions, Inc v President and Fellows of Harvard College The majority rejected the diversity rationale that had supported race-conscious admissions for decades, calling the claimed benefits too vague to qualify as a compelling interest and finding that the programs had no logical endpoint. Universities can no longer treat an applicant’s race as a factor in admissions.
In January 2025, Executive Order 14173 revoked Executive Order 11246, the decades-old rule that had required federal contractors to maintain affirmative action programs covering workforce analysis, hiring goals, and outreach to underrepresented groups. The order directed the Office of Federal Contract Compliance Programs to stop holding contractors responsible for affirmative action and to stop encouraging workforce balancing based on race, color, sex, religion, or national origin.2Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity A 90-day transition window has since closed.
The order went further than repeal. It requires that federal contracts and grants now include a term forcing the recipient to certify that it does not operate DEI programs that violate federal anti-discrimination laws. The certification is deemed material to the government’s payment decisions, which means a false certification could expose the contractor to False Claims Act liability.2Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity A companion executive order shut down internal DEI offices, positions, equity action plans, and related grant programs across federal agencies.3The White House. Ending Radical and Wasteful Government DEI Programs and Preferencing
Everything that follows sits inside those two boundaries.
What College Applicants Can Still Do
The SFFA majority left one opening in admissions. An applicant can write about how race has shaped their life, whether through overcoming discrimination, drawing on cultural heritage, or any other personal experience. The Court was explicit that universities cannot use essays as a backdoor to recreate the old system. A benefit tied to an applicant’s discussion of race must connect to that individual’s courage, determination, or unique ability to contribute, not to their racial identity itself.1Supreme Court of the United States. Students for Fair Admissions, Inc v President and Fellows of Harvard College The line is difficult to police, and the Court offered little guidance on how to do so, but the essay pathway is what remains for applicants who want their experience with race to be part of the file admissions officers see.
Race-Neutral Admissions Strategies
Universities have shifted to methods that promote demographic diversity without directly sorting applicants by race. The most common:
- Top-percentage plans: Texas, California, and Florida guarantee admission to students who graduate in the top tier of their high school class, which captures diversity from racially segregated school systems without considering race directly.
- Socioeconomic preferences: weight for family income, parental education, or first-generation status, factors that overlap with racial demographics but apply regardless of race.
- Test-optional admissions: dropping SAT and ACT requirements, removing a metric that has shown significant racial score gaps.
- Targeted recruitment: expanded outreach to high schools in lower-income areas and communities with low college attendance rates.
Early data from states that banned affirmative action years before the 2023 ruling, like California and Michigan, suggest these alternatives close some of the diversity gap but not all of it. How aggressively universities push the definition of “race-neutral” will likely produce its own litigation.
What Employers Can Still Do
The rules for employment are separate from the rules for education, and SFFA did not directly address workplace programs. Employment is governed primarily by Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin.4U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 Despite that prohibition, the Supreme Court has held that Title VII permits voluntary affirmative action plans in specific, limited circumstances.
The Weber and Johnson Conditions
The foundational case is United Steelworkers of America v. Weber (1979), in which the Court upheld a private employer’s training program that reserved half its spots for Black employees. The Court laid out the limits: the plan must be designed to break down longstanding patterns of segregation, it cannot require firing existing employees or create an absolute bar to their advancement, and it must be temporary rather than aimed at maintaining a racial balance indefinitely.5Legal Information Institute. United Steelworkers of America v Weber
In 1987, Johnson v. Transportation Agency extended the framework. An employer does not need to prove its own prior discrimination to justify a plan; a conspicuous imbalance in a traditionally segregated job category is enough. The plan in that case treated sex as one factor in promotions to skilled craft positions where women were dramatically underrepresented, and the Court found it consistent with Title VII because it was flexible, case-by-case, and did not set aside positions or create quotas.6Justia. Johnson v Transportation Agency
These cases are still good law, but they permit less than most people assume. A company cannot adopt race-conscious hiring simply because it wants a more diverse workforce. There has to be a documented imbalance in a job category where minorities or women have historically been excluded, the plan has to be temporary, and it cannot lock other employees out of advancement. Employers who miscalibrate face reverse-discrimination suits under the same statute they thought authorized the plan. And these precedents were decided in a very different legal environment; whether they would survive a direct challenge in the current Court is an open question.
Section 1981 and Private Race-Based Programs
One boundary catches many people by surprise. Section 1981, part of the Civil Rights Act of 1866, guarantees all persons the same right to make and enforce contracts regardless of race.7Office of the Law Revision Counsel. 42 USC 1981 – Equal Rights Under the Law Unlike Title VII, it applies to contracts broadly rather than just employment.
The Eleventh Circuit found that a grant program offering $20,000 awards exclusively to Black women business owners likely violated Section 1981 because the application process created a contractual relationship and the program erected an absolute bar to non-Black applicants. The court rejected the argument that the program qualified as a permissible remedial measure. This line of cases is reaching scholarships, fellowships, and mentorship programs run by private organizations, not just conventional employment. Any program that conditions participation on race and involves something a court can characterize as a contract is exposed.
Federal Contracting: What Survives
Executive Order 14173 revoked the general affirmative action requirement for federal contractors, but two separate obligations were not touched. The OFCCP still enforces disability-related affirmative action under Section 503 of the Rehabilitation Act and veterans’ hiring requirements under the Vietnam Era Veterans’ Readjustment Assistance Act.8U.S. Department of Labor. Office of Federal Contract Compliance Programs Affirmative action for veterans and people with disabilities in federal contracting remains legally required.
The certification requirement for DEI programs has drawn multiple federal lawsuits challenging its vagueness. A district court initially issued a preliminary injunction blocking parts of the order, but the Fourth Circuit vacated that injunction in early 2026, finding the challengers had not shown a likelihood of success. Cases remain pending in the Seventh and Ninth Circuits. Companies holding federal contracts face genuine uncertainty about what compliance requires, and many have preemptively scaled back diversity programs rather than risk their contracts.
Military Academies
SFFA included a footnote saying the case did not address whether military academies might have distinct interests justifying race-conscious admissions. That opening closed. By 2025, the Secretary of Defense directed the service academies to certify that their 2026 admissions cycles would apply no consideration of race, ethnicity, or sex. SFFA settled its suits against West Point and the Air Force Academy, both dismissed with prejudice, and the government abandoned its earlier defense of the Naval Academy program. Military academies now operate under the same prohibition as civilian universities.
State Bans Add Another Layer
A number of states banned race-conscious affirmative action in public employment, public education, or public contracting long before the federal shift. California led in 1996 with Proposition 209, a constitutional amendment prohibiting preferential treatment based on race or sex in state operations. Michigan, Washington, Nebraska, Arizona, Oklahoma, New Hampshire, and Florida followed through constitutional amendments, legislation, or executive action. These bans remain in effect and in some cases go further than SFFA by restricting government contracting preferences the Supreme Court has not directly addressed. If you work for a state government or attend a public university in one of these states, race-conscious affirmative action was already off the table before the federal landscape caught up.
The Direction of Travel
Each major development over the past three years has narrowed the space for race-conscious policies. Voluntary employment plans under Weber and Johnson, disability and veterans’ preferences in federal contracting, the personal-experience essay in admissions, and race-neutral proxies are what’s left. Anyone designing a program that touches on race should treat the remaining ground as narrow and actively contested rather than settled.