Professor N. Jeremi Duru recently published an important article, Forward Progress: The Rooney Rule and Its Post-SFFA Relevance, which assesses the continuing viability of the National Football League’s Rooney Rule, requiring that any league club searching for a head coach interview at least one person of color before making a hire.  As the piece explains, the NFL had long struggled with racial inequity in coaching and in 2003 implemented the Rule so that coaches of color would have a level playing field in competing for head coach positions. In the over two decades since, employers of all sorts seeking to promote equitable and inclusive employment practices have adopted a form of the Rule.  However, in the wake of the United States Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard (SFFA), invalidating affirmative action admissions programs at Harvard University and the University of North Carolina, the Rooney Rule’s legal validity has come into question. 

As this article points out, though, the Rule should survive any legal challenge.  First, SFFA involved university admissions while the Rooney Rule involves employment, an entirely different realm of American life, governed by different statutes and case law.  Second, the admissions policy challenged in SFFA is totally dissimilar from the Rooney Rule.  The admissions policy involved the university considering race as one among many factors in making an admissions decision, while the Rooney Rule broadens an employer’s interview pool in preparation for a race-neutral decision-making process. Finally, the Rule does not cap the interview pool’s size, meaning expanding the pool broadens the employer’s choices, so no one is disadvantaged. For these reasons, organizations implementing the Rooney Rule should continue to do so with confidence in the lawfulness of their efforts.  In addition, organizations committed to equitable employment opportunity but utilizing initiatives potentially vulnerable in the post-SFFA context should consider adopting the Rule.

This article is essential reading as we navigate a complex environment for equal opportunity initiatives.  In January, President Trump issued an Executive Order painting diversity, equity and inclusion programs as highly suspect and directing the resources of the federal government toward eliminating “illegal” DEI programs without defining them – even though employers have adopted these initiatives to advance equal opportunity and prevent discrimination. This and subsequent Administration actions have frequently ignored or attempted to override long-standing legal precedents, wrongly seeking to chill lawful and effective workplace equal opportunity programs, as explained in a series of letters from former civil rights officials. In July, the U.S. Attorney General issued a “guidance” memo for federal contractors and grantees regarding the Administration’s views on DEI and existing civil rights laws. This memo includes very little actual guidance, but does call out “diverse slates” as an example of “unlawful use of a protected criteria” because it “implicitly” incorporates race and other protected class identities into “selection criteria.”  This fundamentally mischaracterizes the Rooney Rule and other diverse slate policies, which are lawful and effective mechanisms for expanding opportunity. In particular, this memo attempts to conflate the practices at issue in the SFFA case with the very different ways diversity initiatives operate, and ignores the strong legal guardrails that have always applied to the Rooney Rule and many other DEI initiatives. This analysis in Forward Progress helps illustrate why the Attorney General’s characterization is wildly off the mark.  

The key to success of the Rooney Rule is thoughtful implementation. First, an organization should assess which job positions should be covered by the diverse candidate slate requirement. A key question is which positions would benefit from expanding competition to capitalize on underutilized talent.  While expanding outreach and broadening consideration is important at every stage of the hiring process, ensuring the policy applies at the final interview stage ensures the final decisionmaker can consider the best pool of talent. However, crucially, there should be no cap on the number of interviews to ensure that the requirement increases competition. No top candidates should be excluded from the interview phase. It’s also critically important that an organization assess its pipeline of talent to ensure that there are no artificial barriers to advancement throughout the hiring process, as well as evaluate whether the job criteria is so narrowly drawn as to inadvertently exclude top talent for a position. Ideally, organizations should be able to recruit candidates reflecting a range of backgrounds and perspectives on the final interview slate for positions subject to the Rooney Rule requirement.  It is also helpful to have common sense guidelines that assist decision-makers in implementing the Rooney Rule.