Beth A. Bolger, Esq.
- Jul 12, 2023
- 4 min read

Recent U.S. Supreme Court Decisions

Updated: Jul 19, 2023

July 12, 2023

Students for Fair Admissions Inc. v. President and Fellows of Harvard College (20-1199) and Students for Fair Admissions Inc. v. University of North Carolina (21-707)

By: Beth A. Bolger, Esq.

On June 29, 2023, the U.S. Supreme Court effectively ended race-conscious admission programs at colleges and universities across the country, finding that same are violative of the Equal Protection Clause of the Fourteenth Amendment. The 6-3 decision, stemming from challenges to the admissions programs at Harvard College and the University of North Carolina, reverses decades of precedent by prohibiting the ability of colleges and universities — public and private — to consider race as a factor in admission determinations.1 Rather, the nation's colleges and universities must now use colorblind criteria. Writing for the majority, Chief Justice John G. Roberts criticized raced-based preferences, writing:

Many universities have for too long ... concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin … Our constitutional history does not tolerate that choice.

Chief Justice Roberts addressed the Court’s 2003 decisions in Grutter v. Bollinger and Gratz v. Bollinger which relate to the University of Michigan law and undergraduate admissions policies, respectively. Writing for the Court, the late Justice Sandra Day O'Connor then reaffirmed the constitutionality of affirmative action programs but suggested that there would have to be an end at some future point. According to Justice Roberts, that sunset for affirmative action policies has now come.

Notably reading his concurring opinion from the bench, Associate Justice Clarence Thomas reiterated his long-held view that affirmative action imposes a stigma on minorities, stating:

While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold our enduring hope that this country will live up to its principles that ... all men are created equal, are equal citizens, and must be treated equally before the law.

It should be noted that the decision does not entirely eliminate racial considerations in college admissions, with the opinion allowing for an applicant’s discussion of how race affected his or her life. Further, the Court expressly left open the possibility that the nation's military academies continue affirmative action programs given their "distinct interests" and need to ensure a diverse officer corps.

Associate Justices Sotomayor, Kagan and Jackson each issued dissenting opinions, with Justice Jackson writing, "[w]ith let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindness for all' by legal fiat. But deeming race irrelevant in law does not make it so in life."

This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to Beth Ann Bolger at bbolger@cmmolaw.com or Athina L. Cornell of Cornell, Merlino, McKeever & Osborne at acornell@cmmolaw.com

July 13, 2023

Denial of Religious Accommodations May Require an Employer to Demonstrate Substantial Costs to its Business

By: Beth A. Bolger, Esq.

Groff v. DeJoy, Postmaster General (22-174)

On June 29, 2023, the United States Supreme Court held in a 9-0 opinion that Title VII of the Civil Rights Act of 1964 requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. This raises the standard applicable from the previous, long established “more than a de minimis cost” standard. Going forward, employers must be aware of the heightened standard for defending against claims for religious discrimination involving failure to accommodate under Title VII.

In the instant case, Gerald Groff, a former employee of the United States Postal Service (USPS), sued under Title VII, alleging that the USPS failed to accommodate his religious observance. Groff had requested to be off on Sundays, his chosen Sabbath, and alleged that the USPS could offer an accommodation “without undue hardship” on the conduct its business. The District Court granted summary judgment in favor of the USPS. Relying on the prior Supreme Court decision in Trans World Airlines Inc. v. Hardison, the Court of Appeals for the Third Circuit affirmed and found that the USPS would have suffered an undue hardship if required to bear more than a de minimis cost to provide Groff’s accommodation. Groff appealed to the Supreme Court.

The Court clarified the contours of Hardison and explained that, although same stated that an employer who bears more than a de minimis costs suffers an undue hardship, the case cannot be limited to that one phrase. To the contrary, the Court emphasized how the Hardison Court also described that an accommodation is not required when it entails “substantial . . . costs” or “expenditures.” In support of its opinion, the Court also referred to the statutory text of Title VII, explaining that the text suggests something more severe than a mere de minimis cost.

Further, the Court addresses two other recurring issues under Title VII: (1) the Court explained that Title VII requires an assessment of a possible accommodation’s effect “on the conduct of the employer’s business” and that impacts on coworkers are relevant to the extent that same affect the conduct of the business; and (2) for an employer to reasonably accommodate an employee’s religious practice under Title VII, it must consider other possible options rather than simply assess the reasonableness of a particular possible accommodation.

In sum, following Groff, if an employer’s denial of a religious accommodation is challenged, the employer must establish that the burden of granting the religious accommodation would result in substantial increased costs in relation to the conduct of its particular business.