Since the Supreme Court’s June 29, 2023 decision in Students for Fair Admissions (SFA) v. Harvard, 600 U.S. 181 (2023), hiring practices that use race as a factor have come under increasing scrutiny. Orchestra fellowship programs, which many ICSOM orchestras have implemented, are no exception. Even before SFA, musicians have asked whether fellowship programs—which often prefer or are even limited to applicants of certain races—are legal. Before SFA, the answer would have been, “probably, depending on the structure of the program.” After SFA, the answer is, “maybe not for much longer.”
This article has three parts: an overview of the law regarding so-called affirmative action programs; how that law applies to orchestra fellowships; and the SFA decision itself, along with its fallout, and what it means for the future.
Affirmative Action Hiring Plans
The analysis for determining whether a hiring program that uses race as a factor is legal begins with Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race regarding hiring, firing, compensation, terms and conditions of employment, or depriving workers and job applicants of employment opportunities. It applies to unions as well as employers, including the agreements unions make with employers. Title VII also applies to “apprenticeship or other training or retraining, including on-the-job training programs.” Orchestra fellowships fit that definition.
On its face, Title VII would seem to prohibit any hiring program that takes race into account at all. But Title VII did not arise in a vacuum. It was enacted at the height of the civil rights movement, in response to decades of Jim Crow—which followed centuries of slavery—and in the face of longstanding discrimination against women and other groups. One cannot ignore that the very purpose of Title VII was to address the legacy of discrimination suffered by marginalized groups.
Accordingly, the Supreme Court long ago determined that a private employer does not violate Title VII by voluntarily using an affirmative action hiring plan (with some caveats discussed below). Note that there is no precise definition of an “affirmative action” plan, but they are based on an underlying assumption that in the absence of discrimination—including structural or individual biases—the workforce would naturally reflect the gender, racial, and ethnic profile of the labor pool from which the employer selects its workers. If that is not happening, then the employer may take affirmative steps to ensure equality of opportunity.
The Supreme Court first addressed the issue in 1979 in United Steelworkers of America v. Weber, 443 U.S. 193 (1979). In Weber, a collectively bargained affirmative action plan reserved 50% of the openings in an in-plant craft training program for Black workers. A White worker sued. The district court and court of appeals found in favor of the White worker because Title VII on its face prohibited any discrimination on the basis of race, period. But the Supreme Court reversed this decision, holding that in light of the “conspicuous racial imbalance” between the percentage of the employer’s Black employees (1.83%) and that of Black workers in the local labor force (39%), and given “traditional patterns of racial segregation and hierarchy,” Title VII did not prohibit the training program’s reservation of spots for Black workers. Justice Brennan, writing for the majority in the 5–4 decision, noted that it would be “ironic indeed” if a law intended to address “centuries of racial injustice” were instead used to preclude efforts to remedy that legacy of discrimination in employment. (Translation: Title VII was not intended for White people to complain they are victims of discrimination.)
The Court further explained why the craft training program passed legal muster: it did not “unnecessarily trammel the interests of” White workers because the program was temporary (it would end when the percentage of Black workers more closely reflected the labor pool); it did not require that any White worker would be fired and replaced with a Black worker; and it did not “create an absolute bar to the advancement of white employees” because only half the openings were reserved.
In 1982 in Johnson v. Transportation Agency, 480 U.S. 616 (1987), the Court further addressed affirmative action in the context of an employer that took gender into account for promotions to a job category in which none of the 238 positions was held by a woman. The Court followed Weber in holding that the plan did not violate Title VII, explicitly relying on what it found to be the law’s remedial purpose, “eliminating the effects of discrimination in the workplace.” In a twist, though, the Court held that for a job requiring “special training” or skills, the relevant comparison is not with the local labor pool, but with “those in the labor force who possess the relevant qualifications.”
Out of Johnson and Weber and a host of lower court decisions that followed, a three-part test emerged: an affirmative action plan (1) must factually show a “manifest imbalance” between the portion of minorities or women in the workplace and the applicable labor force (noting that “applicable” does not mean “local” for jobs requiring special skills or training); (2) must be temporary, and should end when the imbalance is corrected; and (3) must not “unnecessarily trammel” the rights of non-beneficiaries of the plan (e.g., White people or men) by requiring their discharge or creating an “absolute bar” to their advancement. The third element is often the most contested; in particular, hiring programs that are completely closed to non-beneficiaries are often found to “unnecessarily trammel” their rights.
Orchestra Fellowships
No two orchestra fellowship programs are identical. Typically, though, there are common elements. Fellows are intended to be drawn from populations that have been historically-underrepresented in symphony orchestras. Their activities include performing with the orchestra for a certain number of programs or weeks, receiving coaching from orchestra members, taking mock auditions, and sometimes engaging in community outreach activities. They are paid the same per-service rate as regular members when performing with the orchestra. Most receive at least some benefits. In addition, it is usually clear (whether in a bargained agreement or mutual understanding) that when performing with the orchestra, fellows are additive to the complement—they don’t replace bargaining unit musicians. (Whether subs or extras can be replaced by a fellow is a thornier question.)
One major point of variation between fellowship programs, and probably the most critical from a legal standpoint, is who is eligible to apply. Some fellowship programs in prominent orchestras state on their websites and downloadable applications that only applicants who actually belong to populations historically underrepresented in symphony orchestras are eligible. Those populations are typically defined as “including, but not limited to,” musicians who identify as Black, Latino, or Indigenous. Other orchestras, however, state that the program also is open to applicants with “demonstrated commitment to diversity and inclusion in the arts, learning, and civic leadership.” One orchestra mentions only the historically-underrepresented populations in its description of the program, but then states on the actual application that all candidates are considered regardless of race. (I am deliberately not identifying any specific orchestra in this article.)
I am not aware of any orchestra fellowship program that has been tested in the courts. But as the law stands today, the three-part test from Weber, Johnson, and their progeny would apply. There is no question that orchestra musicians have special training and skills, so the “manifest imbalance” comparison would be between the percentage of underrepresented musicians in the orchestra (usually the low single digits, sadly) and a labor pool consisting of musicians with the requisite skills. That is a factual comparison that can be made with data analysis, but ascertaining the scope of the applicable labor pool—and the percentage of underrepresented musicians within it—might be tricky. Given the incredibly small numbers of musicians from underrepresented groups in most orchestras, it is hard to imagine that the data wouldn’t show an imbalance; but it may not be as extreme as in Weber (39% vs. 1.83%) or Johnson (all qualified women vs. 0%).
As for whether a fellowship satisfies the “temporary” requirement, I’m not sure how many programs specify that they will terminate once the orchestra starts to reflect the racial balance of the applicable workforce. Again, none of this has been tested in court, so it is difficult to predict how significant such an omission might be.
Programs that are completely closed to musicians who do not belong to historically-underrepresented populations might have a difficult time with the “unnecessarily trammels” factor. That is likely why some programs open it up to musicians of any race who can demonstrate a commitment to diversity and inclusion. Even when the program is closed to certain races, though, an argument can be made that there is no unnecessary trammeling: for example, no White musician is losing their job, particularly if the program does not permit fellows to replace other musicians; no White musician faces a “bar to advancement” because they can always win a job the old-fashioned way, by auditioning for a vacancy; and, perhaps most importantly, no fellow is guaranteed a job upon completing their fellowship, so no White musician is at a disadvantage when a vacancy arises in the complement. (Some may argue that auto-advancing a fellow past the preliminary round in an audition is an advantage they possess that White musicians do not, but I don’t find that argument at all compelling; in reality, all sorts of musicians are frequently auto-advanced, and often for less-worthy reasons such as whom they studied or went to school with.)
In sum, there are strong arguments that most orchestra fellowship programs, if tested in court under the law as it stands today, would survive. There are possible hurdles, too: making the data-driven showing of “manifest imbalance,” ensuring that a plan satisfies the “temporary” standard, and—particularly for programs that are closed to certain races—passing the “does not unnecessarily trammel” test. But in my view, orchestra fellowship programs largely harken back to what was approved in Weber: a training and professional development program for historically-underrepresented workers, designed to put them in a better position to get a full-time job and thus address the racial imbalance in the workplace.
SFA and Its Fallout
The SFA decision is the most recent in a line of cases at the Supreme Court that address racial preferences in college admissions, many of which resulted in plurality decisions with no majority of justices in agreement and a host of concurring and dissenting opinions. Now, however, there is a solid majority of six conservative justices who are ideologically aligned, and when it comes to matters of race, that alignment is the polar opposite of the rationale underpinning cases like Weber. As Justice Clarence Thomas writes in his concurrence in SFA: “all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution.”
It must be stressed that the college-admissions cases utilize a different legal framework than the private-employment, affirmative-action cases. Admissions cases do not arise under Title VII or other anti-discrimination statutes; rather, because these schools often are public universities or receive substantial federal funding, they are decided under the Equal Protection Clause of the 14th Amendment: “nor shall any state…deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court’s longstanding legal test under the Equal Protection Clause is that any racial classification must be narrowly tailored to further a compelling governmental interest.
Just 20 years ago, the Supreme Court held in Grutter v. Bollinger, 539 U.S. 306 (2003), that a University of Michigan policy that considered race as a “plus” factor in admissions did not violate the Equal Protection Clause. The majority opinion, written by Justice O’Conner, reasoned that the “educational benefits of a diverse student body” represent a compelling state interest.
But in SFA, the Court effectively overruled Grutter. Diversity of the student body is no longer a viable state interest. Writing for the 6–3 majority, Justice Roberts—famous for his simplistic and circular argument that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—explained that race had been used by colleges as a “negative” rather than a “plus” factor, particularly with respect to students of Asian descent who were not preferred in admissions. In his view, all racial classifications incorporate stereotyping—an assumption that people of a certain race think alike and have similar experiences—and are thus impermissible. The only way for colleges to consider race, he wrote, is to consider on an individualized basis “how race affected [the applicant’s] life, be it through discrimination, inspiration, or otherwise…a benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination.” (I find this quote particularly offensive, as it seems to be asserting that the way to deal with discrimination is not to address perpetrators, but for victims to simply have more “courage and determination.”)
Affirmative action programs in private employment are not directly affected by SFA, as they exist in a different legal context altogether. However, the opinion demonstrates a marked hostility to any form of racial preference that does not bode well for the continued viability of Title VII affirmative-action cases like Weber. Consider this statement from Roberts: “Eliminating racial discrimination means eliminating all of it.” That is code; it is typically said by those arguing that affirmative action is just another form of discrimination. Supreme Court justices choose their words carefully, and this was no accident.
Another comment stands out: Roberts wrote that it is impermissible to compare the racial makeup of college applicants to the general population or to previous college classes until “some rough percentage of various racial groups is admitted.” As discussed above, that kind of comparison, and the requirement that an affirmative-action program stop once the imbalance is corrected, is precisely what justifies a permissible affirmative-action plan under Weber and its progeny.
Opponents of affirmative action wasted no time in arguing that SFA dooms any and all hiring programs that take race into account. Two weeks after SFA was decided, the Attorneys General of 13 states sent a letter to the CEOs of all Fortune 100 companies, warning that SFA “should place every employer and contractor on notice of the illegality of racial quotas and race-based preferences in employment and contracting practices…you will be held accountable.” (See https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2023/pr23-27-letter.pdf).
Next, the same activists behind SFA began suing major law firms over their DEI summer-associate fellowship programs, which typically had been open only to members of historically-disadvantaged populations. The group calling itself the American Alliance for Equal Rights argued that after SFA, the exclusion of White heterosexual male applicants—that is exactly how one such applicant was described in the complaint—violates Title VII and other anti-discrimination statutes. In response, most of these law firms modified their fellowship programs to eliminate the use of race, gender, or identity as a factor in awarding fellowships; one firm simply terminated its fellowship program altogether.
Activists also brought a case against the drugmaker Pfizer for its management fellowship program, which was open only to Black, Latino, and Native American applicants. Although the case was initially dismissed on grounds that the plaintiff lacked standing to sue, the plaintiff appealed—and while that appeal was pending, Pfizer changed course and opened up the program to applicants of all races. That still wasn’t enough, evidently: on appeal to the Second Circuit Court of Appeals, the plaintiff is arguing that even the mere goal of increasing diversity in the workplace violates anti-discrimination laws. This could be the first affirmative action case arising from private employment to get to the Supreme Court after SFA.
The fact that some of the largest and most sophisticated law firms and corporations are unwilling to defend their fellowship programs in court after SFA is not a good omen. This Supreme Court’s hostility to pretty much any consideration of race, combined with its demonstrated willingness to overrule settled precedent (e.g., the Dobbs decision), would seem to put the writing on the wall when it comes to Weber and the legality of affirmative action plans in private employment.
In the event the Supreme Court threatens the viability of orchestra fellowship programs, we will need to explore other avenues of professional development for musicians of historically underrepresented populations. Fellowships programs have worked—they are probably the most effective tool we have had when it comes to increasing representation. Fellows get jobs. If the Court makes these programs untenable, we will have to find something equally effective.
