Affirmative action in the United States looks very different than it did three years ago. The Supreme Court banned race-conscious college admissions in June 2023, and in January 2025 President Trump revoked Executive Order 11246, ending the requirement that federal contractors maintain race- and sex-based affirmative action programs. What remains is narrower and more legally exposed: contractors still owe affirmative action obligations for people with disabilities and protected veterans, and private employers may still adopt voluntary diversity plans under Title VII, but only within tight limits set by a 1979 Supreme Court decision.
College Admissions Can No Longer Consider Race
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, decided 6-3 in June 2023, the Supreme Court held that the admissions programs at Harvard and the University of North Carolina violated the Equal Protection Clause of the Fourteenth Amendment.1Justia Law. Students for Fair Admissions Inc. v. President and Fellows of Harvard College The Court found that the programs failed strict scrutiny because their diversity goals lacked “sufficiently focused and measurable objectives,” relied on racial stereotyping, and had no logical endpoint.
The ruling applies to both public and private institutions that accept federal funding, because discrimination violating the Equal Protection Clause by a federally funded institution also violates Title VI of the Civil Rights Act of 1964.2U.S. Department of Justice. Title VI of the Civil Rights Act of 1964 Race can no longer serve as a plus factor, a tiebreaker, or any other mechanism aimed at reaching a target demographic.
The Narrow Essay Exception
The Court preserved one path for race to enter the process. An applicant may write about how race has affected their life, and an admissions officer may credit what that experience reveals about the individual: courage in the face of discrimination, initiative sparked by cultural heritage, resilience shaped by a particular background. The credit has to attach to the personal quality the student demonstrated, not to their racial identity. As the Court put it, “the student must be treated based on his or her experiences as an individual—not on the basis of race.”1Justia Law. Students for Fair Admissions Inc. v. President and Fellows of Harvard College
Schools cannot use essay content to reconstruct the system the Court struck down. An admissions process that routinely rewards applicants for mentioning their racial background, rather than for what that background says about their character, would be vulnerable to challenge.
Federal Contractor Affirmative Action Has Been Revoked
On January 21, 2025, President Trump signed Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” The order revoked Executive Order 11246, which had governed federal contractor affirmative action since 1965.3Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity
Contractors were given 90 days to transition. After that window closed, they were no longer required to:
- Maintain written affirmative action programs based on race, sex, or national origin
- Conduct utilization analyses comparing their workforce demographics to local labor markets
- Set placement goals for underrepresented groups
- Track applicant flow data for Office of Federal Contract Compliance Programs (OFCCP) purposes
EO 14173 also directed OFCCP to stop promoting diversity, holding contractors accountable for affirmative action, or encouraging workforce balancing based on race, color, sex, religion, or national origin. The Department of Labor has begun a formal rulemaking process to rescind the regulations that implemented EO 11246.4Federal Register. Rescission of Executive Order 11246 Implementing Regulations
The New DEI Certification Requirement
EO 14173 replaced the old obligations with new ones. Every federal contract and grant award must now include a term requiring the recipient to certify “that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Contracts must also include a clause stating that compliance with federal anti-discrimination laws is “material” to the government’s payment decisions under the False Claims Act.3Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity That linkage matters. A false certification could expose a contractor to treble damages and penalties, not just loss of the contract.
The certification has drawn court challenges. In April 2025, a federal district court in Illinois issued a nationwide injunction blocking the Department of Labor from enforcing it, finding a likely First Amendment violation. In February 2026, the Fourth Circuit Court of Appeals vacated a similar injunction, holding that plaintiffs could challenge specific enforcement actions but had not shown the provision was facially unconstitutional. The legal status remains unsettled, and contractors should treat the certification as enforceable while the litigation continues.
Disability and Veteran Preferences Still Require Affirmative Action
The revocation was targeted, not total. Section 503 of the Rehabilitation Act of 1973 still requires federal contractors to take affirmative action in hiring and advancing individuals with disabilities. The Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) imposes a parallel obligation for protected veterans, and EO 14173 explicitly exempts “lawful Federal or private-sector employment and contracting preferences for veterans.”3Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity
OFCCP retains enforcement authority over both statutes, and the Department of Labor is restructuring its administrative procedures to operate under Section 503 and VEVRAA independently now that the EO 11246 framework is gone.4Federal Register. Rescission of Executive Order 11246 Implementing Regulations Federal contractors still need written affirmative action programs for people with disabilities and for veterans. Only the race-, sex-, and national-origin-based programs disappeared.
Voluntary Diversity Programs Under Title VII
Private employers with 15 or more employees are covered by Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin.5U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 The 2023 college admissions ruling did not change the framework for workplace diversity programs. Title VII still permits, but does not require, voluntary affirmative action within limits.
The controlling standard comes from United Steelworkers v. Weber, decided by the Supreme Court in 1979. A private employer may adopt a voluntary, race-conscious plan when three conditions are met:6Justia Law. Steelworkers v. Weber, 443 U.S. 193
- The plan is designed to break down old patterns of segregation in job categories traditionally closed to minorities
- The plan does not create an absolute bar to advancement for non-minority employees or require their discharge
- The plan is temporary rather than intended to maintain a permanent racial balance
The EEOC’s guidelines, codified at 29 CFR Part 1608 and still in effect as of 2026, flesh out the framework. An employer that conducts a self-analysis and identifies effects of past discrimination, a limited pool of qualified minority or female candidates, or external factors like segregated school systems may take “reasonable affirmative action” to address the problem. The plan needs a reasonable self-analysis, a reasonable basis for concluding action is appropriate, and reasonable corrective measures.7eCFR. 29 CFR Part 1608 – Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964, as Amended
Rigid quotas, exclusion of non-minority candidates from entire job categories, or plans that outlast the imbalance they were meant to correct cross the line from lawful affirmative action into illegal discrimination.
Rising Enforcement Risk for Private DEI Programs
The Weber framework is still the law, but the enforcement climate around it has shifted sharply. EO 14173 directed the Attorney General to submit a report identifying “the most egregious and discriminatory DEI practitioners” in the private sector and to develop strategies for deterring illegal DEI programs. In February 2025, the Department of Justice and the Office of Personnel Management issued guidance memoranda describing what they consider illegal DEI activity.3Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity
The practical concern is characterization. A program designed as lawful outreach may be treated by federal enforcers as a prohibited preference. Any policy that sets hiring quotas, reserves opportunities for members of particular groups, or uses protected characteristics as a factor in employment decisions is likely to attract scrutiny.
Employers reviewing their programs should strip out anything that grants preferences or creates exclusions based on protected characteristics. Programs that widen candidate pipelines, provide mentoring, host cultural or educational events open to all employees, and train managers on fair evaluation practices remain on solid legal ground. The line that matters now is between programs that remove barriers for everyone and programs that treat people differently based on who they are.
Race-Neutral Alternatives That Still Work
With race-conscious admissions banned and race-based contractor rules revoked, universities and employers pursuing diverse environments have leaned on strategies that reach similar results without considering race directly.
Several states adopted “top percentage” plans for public university admission. Texas has guaranteed admission to the top 10 percent of each high school graduating class at state universities since 1997. Florida adopted a version covering the top 20 percent; California uses a top 4 percent plan. Because residential patterns leave many high schools serving predominantly one racial or ethnic group, these plans produce demographic diversity without ever asking about an applicant’s race.8U.S. Commission on Civil Rights. Toward an Understanding of Percentage Plans in Higher Education
Socioeconomic approaches use family income, neighborhood characteristics, and school quality as inputs. Prioritizing applicants from low-income households or under-resourced districts reaches many of the same candidates that race-conscious programs once did, while applying the same standards to everyone. Economic disadvantage, not racial identity, is the relevant factor, which keeps these strategies legally defensible.
Employers can take a parallel path by broadening where they recruit. Posting openings at a wider range of professional organizations, community colleges, and vocational programs diversifies the applicant pool without any race-based selection at the point of hire. Tracking the results of that outreach lets an organization verify the pipeline is working while keeping the final hiring decision entirely race-neutral.