SCOTUS Anti-Discrimination Implementation Act

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Summary

This model codifies the United States Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

SCOTUS Anti-Discrimination Implementation Act

1 – Legislative purpose and findings.

(a) Legislative purpose.

(i) It is the intent of the Legislature to ensure that no person, on the ground of race, color, or ethnicity, shall be excluded from participation in, or be denied the benefits of, or be subjected to discrimination in, any educational institution operating or conducting business in this State, including, but not limited to, exclusions, denials, and discrimination in the form of affirmative action. This purpose reflects the core purpose of the anti-discrimination principles in the policies and laws of this State, and in the federal Constitution and laws, to do away with all discrimination based on race, color, or ethnicity.

(ii) The Fourteenth Amendment to the federal Constitution and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, as interpreted by the Supreme Court of the United States in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023), forbid public and private educational institutions from employing affirmative-action programs. It is the intent of the Legislature to enshrine in state law and policy the prohibition of affirmative action in educational institutions operating or conducting business in this State.

(b) Legislative findings. The Legislature finds as follows:

(i) The State, and persons residing in and out of this State, are harmed by discrimination based on race, color, or ethnicity, in any form, including affirmative action.

(ii) Public and private educational institutions operating or conducting business in this State have employed affirmative-action programs that favored applicants from select races, colors, or ethnicities. These institutions have used race, color, and ethnicity as factors, for and against, applicants in the admissions process.

(iii) These affirmative-action programs have operated invidiously to exclude and discriminate against applicants because of their race, color, or ethnicity. Educational institutions operating or conducting business in this State have operated their admissions programs on illegitimate stereotypes, such as that students of particular races, colors, or ethnicities always or consistently think alike on any issue.

(iv) No legitimate purpose justifies using in any manner the fact of an applicant’s or student’s race, color, or ethnicity in the admissions process, when making admissions, scholarship, or financial-aid decisions, or when making any decision concerning student organizations, student groups, courses, or any other program or activity associated with the educational institution.

(v) Admissions officers have collected, considered, and used data about applicants’ race, color, ethnicity, and national origin to make admissions decisions based on race, color, and ethnicity as part of affirmative-action programs.

(vi) The awareness of such data by admissions officers facilitates the unlawful use of race, color, and ethnicity in the admissions and financial-aid processes. Awareness of such data, or of any applicant’s race, color, or ethnicity, by admissions or financial-aid officers before those decisions are finalized, would thwart the Legislature’s purpose to eradicate the use of race, color, and ethnicity by educational institutions in the admissions and financial-aid process.

(vii) To the extent that the collection and awareness of such data serves any legitimate purpose, that purpose can be served without officers having access to or awareness of such data during the admissions process or before making final decisions about scholarships and financial aid.

(viii) Private educational institutions operating or conducting business in this state receive both federal and state financial assistance.

2 – Definitions. As used in this section, the term:

(a) “Educational institution” means any college, university, postsecondary institution, or any other institution of higher education, whether public or private.

(b) “Admissions officer” means any officer, employee, or agent of the educational institution who facilitates the educational institution’s process for the admission of applicants or students in any of the educational institution’s programs or activities.

(c) “Financial-aid officer” means any officer, employee, or agent of the educational institution who facilitates the educational institution’s process for the distribution of scholarships, financial aid, or other funding to applicants or students in any of the educational institution’s programs or activities.

(d) “Program or activity” means any department, agency, or office of any educational institution, admissions offices, and financial-aid offices.

3 – Prohibitions. (a) No person shall, on the ground of race, color, or ethnicity, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational institution, or any program or activity in any educational institution, operating or conducting business in this State. Affirmative action falls within this prohibition.

(b) No educational institution, or officer, employee, or agent of such institution, shall perform any actions in this State in furtherance of, or to facilitate, any decision, on the ground of race, color, or ethnicity, to exclude any person from participation in, deny any person the benefits of, or subject any person to discrimination under the educational institution, or any program or activity in the educational institution, as prohibited under subsection 3(a).

(c) No educational institution operating or conducting business in this State shall use in any way any applicant’s race, color, ethnicity, or national origin to make decisions about the applicant’s admission, scholarships, or financial aid. The use of aggregated data concerning the race, color, ethnicity, or national origin of applicants or students to make any such decisions is prohibited.

(d) (i) No educational institution shall reveal or make known to any admissions or financial-aid officers data concerning the race, color, or ethnicity of any applicant or student before admissions and financial aid, scholarship, and funding decisions are finally made.

(ii) No admissions or financial-aid officers shall intentionally acquire any such data by any alternative means before admissions or financial aid, scholarship, and funding decisions are finally made.

4 – Private causes of action. (a) There is established a private cause of action against any educational institution for the violation of any of the prohibitions in subsection 3 of this section, directly or vicariously.

(b) There is established a private cause of action against any officer, employee, or agent of an educational institution for their violation of subsections 3(b) or 3(d) of this section, provided, however, that if any such officer, employee, or agent shall have performed an action in violation of subsections 3(b) or 3(d) at the direction of the educational institution or any other superior officer, employee, or agent thereof, the cause of action shall lie only against the educational institution or other superior officer, employee, or agent thereof.

5 – Damages. (a) In an action brought under subsection 4(a) of this section against an educational institution by a complaining applicant or student, the complaining applicant or student may recover:

(i) any actual or compensatory damages sustained by such person as a result of any violations of this section; and

(ii) punitive damages against a private educational institution if the complaining applicant or student demonstrates that the educational institution discriminated against the complaining applicant or student intentionally or with reckless indifference to the protected rights of such person.

(b) In an action brought under subsection 4(b) of this section against any officer, employee, or agent of an educational institution by a complaining applicant or student, the complaining applicant or student may recover actual or compensatory damages sustained by such person as a result of any violation of subsections 3(b) or 3(d) of this section.

(c) In an action brought by a complaining applicant or student under subsection 3(a) of this section for the violation of subsection 3(d) of this section, the educational institution shall be strictly liable to the complaining applicant or student for $4,000.00 in statutory damages, independent of any actual or compensatory damages sustained by the complaining applicant or student as a result of such violation.

6 – Injunctive and declaratory relief. In any action brought under this section, injunctive and declaratory relief is available to any complaining applicant or student, or to any organization suing on behalf of aggrieved applicants or students.

7 – Attorney’s fees. In any action brought under this section, the court shall award any prevailing plaintiff a reasonable attorney’s fee as part of the costs.

8 – Construction. (a) Nothing in this section shall be construed to limit the scope of, or the relief available under, any other antidiscrimination statute.

(b) The prohibitions in this section shall be construed liberally to effectuate the Legislature’s purposes.

9 – Sovereign Immunity. In any action brought under this section, the State hereby waives sovereign immunity.