Flag on the Play: Could the Lawsuits Challenging Affirmative Action and DEI Initiatives Lead to the NFL Sacking the Rooney Rule?

By: Hanna Lambert*                                                                             Posted:10/17/23

On June 29, 2023, the Supreme Court ruled in favor of dismantling affirmative action for colleges and universities. [1] In overturning almost four decades of precedent, the Supreme Court’s decision in Students for Fair Admissions, Inc. v. Presidents & Fellows of Harvard College [2] rendered the consideration of race as a factor in a candidate’s admission decision for a university or college unconstitutional. [3]  Journalists and executives of the National Football League (“NFL”) have stated that the recent Supreme Court ruling does not affect the NFL’s Rooney Rule, which is an initiative that started in the early 2000s and is regularly modified to promote diversity equity and inclusion within the hiring process for the National Football League’s coaching and administrative staff positions.[4]  However, the minimal degree of separation between the Rooney Rule and the Supreme Court’s ruling may prove inadequate in the wake of similar lawsuits brought against law firms Perkins Coie LLP and Morrison & Foerster LLP for the firms’ race-based application review processes and large-scale DEI initiatives.[5]

Supreme Court’s Decision to Overturn Affirmative Action Results in Lawsuits Filed Over Company DEI Initiatives

The Supreme Court’s ruling in Presidents & Fellows of Harvard College overturned past precedent regarding consideration of applicant race in college admissions and specified the core issues in schools’ admissions policies that lead to inequitable candidate consideration.[6]  However, the Court neglected to specify whether the Presidents & Fellows of Harvard College decision applied in instances not directly related to college admissions settings.[7]  The lingering ambiguity resulted in anti-affirmative action activist, Edward Blum, filing a lawsuit against law firms Perkins Coie and Morrison & Foerster, alleging that the DEI programs implemented by the firms discriminate against candidates based on race.[8]  American Alliance for Equal Rights, the plaintiffs represented by Blum, alleged that Perkins Coie violated the precedent set forth by Presidents & Fellows of Harvard College because the firm offered higher-paid positions and exclusive job opportunities to “‘students of color,’ ‘students who identify as LGBTQ+,’ or ‘students with disabilities.’”[9]  Plaintiffs argued a similar standpoint against Morrison & Foerster’s diversity-oriented summer associate positions.[10]  In the filed complaints, the plaintiffs alleged that the diversity fellowship programs run by Perkins Coie and Morrison & Foerster violated 42 U.S.C. § 1981 because the firms excluded specific applicants from job consideration due to race.[11]  This argument is grounded in similar concerns as the plaintiffs in Presidents & Fellows of Harvard College presented; race should not be a factor in job consideration or job offer decisions.[12]  Notably, Blum and his client, American Alliance for Equal Rights, filed another lawsuit against a venture capital fund, Fearless Fund, challenging the constitutionality of a grant offered solely to female black business owners.[13]  Each lawsuit filed by Blum’s clients hinges on a claim that the program at issue, whether a diversity fellowship or targeted grant funding, violates the Civil Rights Act of 1866 (codified at 42 U.S.C. § 1981) because the program actively promotes racial discrimination in employment and contract formation.[14]

Assessing Current Provisions of Rooney Rule

The NFL’s adoption of the Rooney Rule in 2003 aimed to increase diversity within the league’s coaching staff.[15]  Currently, the Rooney Rule mandates that “two external minority candidates” at a minimum must be allotted an interview for open head coach positions and that one minority candidate or female candidate must be provided the opportunity to interview for vacant senior-level positions.[16]  The Rule’s provisions apply to every team in the NFL and all open coaching and administrative positions for teams.[17]  Each team must also follow specific minority and female candidate interview mandates for vacant quarterback coach positions.[18]  The last major provision of the existing Rooney Rule is a type of reward system which grants a third-round compensatory draft pick to all teams that retain and develop minority job candidates; this third-round draft pick reward is contingent upon the employed minority individual taking a high paid or higher ranked position with a different NFL team.[19]  While some commentators argue that the Rooney Rule’s effect has significantly weakened since 2003, the NFL continues to stand by the Rule’s potential and its original purpose for adoption.[20]

Law Firm and Capital Fund Lawsuits Threaten NFL’s Previous Assessment of Rooney Rule’s Admissibility

The NFL's stance on the Rooney Rule remained unchanged in the wake of the Supreme Court's initial decision, which declared affirmative action in colleges and universities unconstitutional.[21]  The NFL held the belief that the Supreme Court's ruling specifically pertained to the academic domain and thus, did not affect their standard business practices.[22]  However, with recent challenges to workplace DEI initiatives and DEI-centric hiring practices, the Rooney Rule may need to adapt to ensure its longevity.[23]  Notably, the new lawsuits following the affirmative action reversal focus on the issue of the creation of racially discriminatory contracts; if the act promoting diversity and inclusion does not create a contract or reasonably lead to a contract, it will likely not fall under any new precedent developed by the Perkins Coie, Morrison & Foerster, and Fearless Fund rulings.[24]  

Drawing Factual Distinctions Between Law Firm Lawsuits and Rooney Rule

The Rooney Rule’s current provisions differ from the facts alleged in the Perkins Coie, Morrison & Foerster, and Fearless Fund cases because the Rooney Rule does not create employment positions specifically for minorities and women, in which only minorities and women may apply and be considered.[25]  Rather, the Rooney Rule merely forces a team to consider a minority or woman applicant after an interview, and there is no mandate that they must be given the job.[26]  The main contention point in the law firm cases is that the aggrieved plaintiffs cannot even apply to the DEI fellowships the firms offer; the Rooney Rule does not boast this problem.[27]  Instead, the Rooney Rule allows applicants from all backgrounds to apply and be considered for the vacant coaching, senior-level, and administrative roles, but mandates that at least two minorities be interviewed for the position.[28]  Currently there is no Rooney Rule provision mandating that the hired individual be one of the minority candidates interviewed for the position.[29]

Rooney Rule’s Draft Pick Reward Provision May Render Rule Unenforceable Pending Outcome of Law Firm and Capital Fund Lawsuits

Although it remains uncertain whether the third-round compensatory draft pick provision resembles the circumstances presented in the recent racial discrimination lawsuits, this particular clause will likely require revision.[30]  The reason for this impending revision is the provision's potential to be interpreted as creating a contractual obligation based on the incentive of rewarding teams for the recruitment and advancement of minority coaches.[31]  Since this reward is contingent upon hiring coaches from a specific racial background, it may be perceived as discriminatory.[32]  Thus, the key differences between provisions of the Rooney Rule and the facts alleged in the newest lawsuits looking to expand the Supreme Court’s reversal of affirmative action make it possible that the Rooney Rule may continue to exist with minor modifications.[33]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2025, Villanova University Charles Widger School of Law.

[1] See Nina Totenberg, Supreme Court Guts Affirmative Action, Effectively Ending Race-Conscious Admissions, NPR (June 29, 2023, 7:52 PM), https://www.npr.org/2023/06/29/1181138066/affirmative-action-supreme-court-decision (explaining Supreme Court’s holdings in Students for Fair Admissions, Inc. v. Presidents & Fellows of Harv. Coll.).  

[2] Students for Fair Admissions, Inc. v. Presidents & Fellows of Harv. Coll., 143 S.Ct. 2141 (2023).

[3] See id. at 2175-76 (holding that Harvard College and University of North Carolina’s admissions processes violated Equal Protection Clause of Constitution).  In Students for Fair Admissions, Inc. v. Presidents & Fellows of Harv. Coll., the Supreme Court merged two separate cases to inquire whether considering a college applicant’s race as a factor for admissions decisions violates the Constitution.  See id. (explaining that Supreme Court merged racial discrimination cases brought against Harvard College and University of North Carolina for admissions committees’ practices and consideration of race as admission factor).  Plaintiffs argued that Harvard College and the University of North Carolina’s admissions processes violated Title VII and the Equal Protection Clause because the institutions considered applicant race as one of a few contributing factors in multi-level admission decisions; admissions officers of both universities could indicate preferential admission treatment for applications that indicate the individual is from an underrepresented minority group.  See id. at 2154-57 (explaining Plaintiff’s arguments against Harvard College and University of North Carolina).  Notably, both Harvard College and the University of North Carolina admitted that they considered race as a factor in making decisions, but only to the extent permissible under the Supreme Court’s Grutter v. Bollinger decision.  See id. at 2172-73 (explaining defendants’ main argument regarding permissibility of their admissions decision practices); see also Totenberg, supra note 1 (explaining that Supreme Court found race-based college admissions programs violated Equal Protection Clause of Constitution and effectively overturned affirmative action in Presidents & Fellows of Harv. Coll.).  A major consideration iterated by the Supreme Court in evaluating the admissions processes of Harvard College and the University of North Carolina was the lack of definitive end points for race-based admission decisions; both schools failed to conduct “periodic reviews” of and determine set end dates for their race-based admissions programs, which violated the precedent set forth in Grutter v. Bollinger.  See Presidents & Fellows of Harv. Coll., 143 S. Ct. at 2172-73 (citing Grutter v. Bollinger, 539 U.S. 306, 342 (2003)) (explaining that Harvard College and University of North Carolina failed to adhere to Supreme Court precedent which they cited as support for their arguments).  The Court also indicated that both admissions programs utilized racial stereotypes when reviewing applications submitted by minority applicants or majority applicants; the Court explained that stereotyping implies a negative use of race consideration in the admissions process.  See id. at 2175 (acknowledging harmful effects racial stereotyping in college admissions process).  Notably, the Court did not prohibit the universities from considering personal statements or essays that reflect on struggles inflicted because of the applicant’s race; the Court clarified that application essays discussing race may be considered to the extent of the applicant’s qualities and personal experiences resulting from their race, not merely the applicant’s race on its face.  See id. at 2176 (explaining that application essays that talk about racial struggles may be considered in admissions decisions, but applicant’s race alone as determining factor may not be considered for purposes of admissions decisions).

[4] See Totenberg, supra note 1 (explaining applicability for holding of Presidents & Fellows of Harv. Coll. is currently limited to college and university admission decisions).  The Supreme Court evaluated only college admissions processes in Presidents & Fellows of Harv. Coll. and concluded by stating that universities have unjustly considered applicant race, as opposed to the qualities and experiences of the applicant, for too long.  See Presidents & Fellows of Harv. Coll., 143 S. Ct. at 2175-76 (suggesting that Court’s holding applies only to college admissions programs currently).  See Joseph Salvador, Explaining the NFL’s Rooney Rule Requirements, Sports Illustrated (Jan. 19, 2023), https://www.si.com/nfl/2023/01/19/nfl-rooney-rule-requirements-hiring-coach-gm-executives (discussing provisions and general aim of NFL’s Rooney Rule).

[5] See Mike Florio, Will the Rooney Rule Survive?, NBC Sports (July 10, 2023, 12:59 PM), https://www.nbcsports.com/nfl/profootballtalk/rumor-mill/news/will-the-rooney-rule-survive (explaining NFL’s position in standing by Rooney Rule despite news of Supreme Court overruling affirmative action).  The author discusses the league’s “delicate position” if the Supreme Court decides to extend its overruling of affirmative action into other spheres of society but neglects to touch on the Perkins Coie and Morrison & Foerster lawsuits because those suits were filed after publication.  See id. (discussing NFL’s need to reconsider its approach to Rooney Rule in light of Supreme Court’s ruling in Presidents & Fellows of Harv. Coll.).

[6] See Totenberg, supra note 1 (discussing Supreme Court’s decision to overturn affirmative action and specifying that current applicability of ruling is only to colleges and universities).

[7] See Mike Freeman, ‘It’s Safe For Now’: The Rooney Rule is an NFL Institution. But for How Much Longer?, USA Today (July 6, 2023, 9:47 AM), https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/07/06/nfl-rooney-rule-affirmative-action/70380369007/ (explaining that Supreme Court has not identified parameters of applicability for its ruling in Presidents & Fellows of Harvard Coll.).

[8] See Tatyana Monnay, Perkins Coie, Morrison Foerster Sued Over DEI Programs (2), Bloomberg L. (Aug. 22, 2023, 10:43 PM), https://news.bloomberglaw.com/business-and-practice/perkins-coie-morrison-foerster-sued-by-blum-over-dei-programs (providing background and consolidated analysis of identical legal claims brought by American Alliance for Equal Rights against Perkins Coie and Morrison & Foerster).

[9] See Complaint at 1-2, Am. All. For Equal Rts v. Perkins Coie LLP, No. 3:23-cv-01877-L (N.D. Tex. Aug. 22, 2023) (explaining plaintiffs’ claims regarding racial discrimination brought against Perkins Coie and applicable Supreme Court precedent).

[10] See Complaint, 1-2, Am. All. For Equal Rts v. Morrison & Foerster LLP, No. 1:23-cv-23189 (S.D. Fla. Aug. 22, 2023) (explaining basis of plaintiffs’ claims of racial discrimination brought against Morrison & Foerster).

[11] See id. at 8-9 (explaining that plaintiff’s claim alleged that diversity fellowship employment positions violated § 1981 because positions were granted by process that considered race of applicant and employment is enforced by contract, which is not permissible under § 1981); see also Complaint, supra note 8, at 9-10 (explaining Perkins Coie violated § 1981 through their operation of its fellowship program because they designated specific positions for employment on basis of candidate’s race).

[12] See Complaint, supra note 9, at 8-9 (explaining main argument of racial discrimination made by plaintiff); see also Complaint, supra note 8, at 9-10 (explaining racial discrimination argument at center of claim made by plaintiffs).

[13] See Nate Raymond, Conservative Activist Behind US Affirmative Action Cases Sues Venture Capital Fund, Reuters (Aug. 2, 2023, 2:47 PM), https://www.reuters.com/legal/conservative-activist-behind-us-affirmative-action-cases-sues-venture-capital-2023-08-02/ (explaining additional case filed by Blum challenging program which provided grant funding to black female-owned businesses, on grounds of § 1981 violation).  Blum relied on the Presidents & Fellows of Harv. Coll. ruling as justification for the suit: Blum claims that the program’s candidate hiring process discriminates against applicants based on race and discriminatorily forms employment contracts with candidates in violation of 42 U.S.C. § 1981.  See Frederick V Bryant II, Byron J. McLain, & Kelvin L. Thomas, Five Things to Know Regarding American Alliance for Equal Rights v. Fearless Fund, Foley & Lardner LLP (Aug. 10, 2023), https://www.foley.com/en/insights/publications/2023/08/american-alliance-equal-rights-v-fearless-fund (explaining basis of legal claim filed against venture capital firm, Fearless Fund).

[14] See Raymond, supra note 13 (explaining key points of legal complaint filed against Fearless Fund that alleged racial discrimination); see also Monnay, supra note 8 (explaining legal basis for lawsuits against Perkins Coie and Morrison & Foerster).

[15] See Salvador, supra note 4 (discussing motive behind NFL’s decision to adopt Rooney Rule as standard practice).

[16] See id. (describing external minority or female interview mandates for vacant head coach, administrative, and managerial positions).

[17] See id. (explaining that NFL updated applicability and breadth of Rooney Rule in 2022).

[18] See id. (discussing amendment to Rooney Rule, adopted in 2022, that mandates interviews with external minority or female candidates for vacant quarterback coaching roles).

[19] See id. (explaining benefits granted to teams that actively develop minority talent who then decide to seek employment with different team).  This provision acts as a reward system for teams that develop minority personnel who later leave their positions to fill a vacant role of a higher caliber for a different team.  See id. (explaining how compensatory draft pick provision of Rooney Rule rewards teams who hire and develop minority personnel members).  In the instances previously described, the team that developed the minority personnel is granted a compensatory third-round draft pick for two to three years, depending on if they lose one minority personnel member or multiple.  See id. (explaining details of reward system is dependent on amount of minority personnel members that secured promotions to higher positions on different teams).

[20] See generally Scott Neuman, Why a 20-year Effort by the NFL Hasn't Led to More Minorities in Top Coaching Jobs, NPR (Feb. 3, 2022, 1:23 PM), https://www.npr.org/2022/02/03/1075520411/rooney-rule-nfl (explaining that Rooney Rule created glorified checklist for employers and has not substantiated any real cultural change in NFL); see also NFL Football Operations, The Rooney Rule, Nat’l Football League, https://operations.nfl.com/inside-football-ops/inclusion/the-rooney-rule/ (last visited Sept. 29, 2023) (explaining that NFL stays committed to Rooney Rule and is currently developing plans for new amendments to further diversity, equity, and inclusion in NFL).

[21] See Florio, supra note 5 (explaining rationale behind NFL’s reluctance to change Rooney Rule provisions after Supreme Court overturned affirmative action).

[22] See id. (explaining that NFL did not indicate that Rooney Rule would be altered unless Supreme Court expanded application of new ruling to non-academic entities).

[23] See id. (explaining that lack of lawsuit and court application against private employers was basis for NFL’s decision to stand by Rooney Rule despite decision to overturn affirmative action); Monnay, supra note 8 (presenting claims brought against Perkins Coie and Morrison & Foerster for firms’ diversity fellowship programs); see also Bryant et al., supra note 13 (explaining basis of lawsuit against venture capital company Fearless Fund).

[24] See Complaint, supra note 10, at 8-9 (explaining that racial discrimination in contract formation is issue at heart of plaintiff’s legal claim); Complaint, supra note 9, at 9-10 (explaining that creation of contract based on racially discriminatory practices was main issue in filing suit); see also Bryant et al., supra note 13 (explaining that distribution of grant money to minority women who won would create contract that was preceded by and concurrent with racial discriminatory practices).

[25] See Salvador, supra note 4 (explaining limitations and current provisions of Rooney Rule including 2022 updates); see also Monnay, supra note 7 (discussing factual background of Perkins Coie and Morrison & Foerster lawsuits and factors at dispute in complaints); see also Bryant et al., supra note 13 (explaining background of lawsuit against Fearless Fund and grant limitation to solely black woman as determinative factor in plaintiff’s complaint).

[26] See Salvador, supra note 4 (explaining explicitly that applicable Rooney Rule provisions only govern interview process, not overall hiring process or mandates).

[27] See Complaint, supra note 10, at 8-9 (explaining that current diversity fellowship programs solely accepts applicants from specific racial or underrepresented backgrounds and refuses to offer employment to individuals who are not traditionally underrepresented minorities); see also Complaint, supra note 9, at 9-10 (discussing allegation that primarily straight white men are not permitted to apply to fellowship program and will not be given consideration because they do not fit “discriminatory” hiring criteria).

[28] See NFL Football Operations, supra note 20 (explaining that Rooney Rule merely imposes interview mandate).

[29] See id. (explaining that Rooney Rule does not place restrictions on who can apply for or be offered employment pursuant to vacant positions).

[30] See Florio, supra note 5 (explaining NFL’s reluctance to change Rooney Rule provisions because scope of applicability for Presidents & Fellows of Harv. Coll. is currently only limited to college admissions).  Should the compensatory draft pick provision be construed as an activity leading to discrimination in the creation or enforcement of contracts, this provision will likely be deemed impermissible pending a court’s hearing of the lawsuit and Fearless Fund cases.  See Bryant et al., supra note 13 (explaining that race-based discrimination in creation of employment contracts is issue at center of law firm and Fearless Fund cases).

[31] See id. (explaining that creation of contract that is racially discriminatory was basis for lawsuit).  Section 1981 of the Civil Rights Act of 1866, the statute under which the law firms and capital fund are being sued, does not mandate that a contract must already exist for purposes of protecting individuals’ contracting rights from racial discrimination.  See Complaint, 10-11, Am. All. for Equal Rts v. Fearless Fund, No. 1:23-cv-03424-TWT (N.D. Ga. Aug. 2, 2023) (discussing lack of application limitations for 42 U.S.C § 1981 regarding contracts not yet formed).  The granting of a third-round draft pick based on a team’s ability to hire and retain minority coaches may implicate issues asserted in the Perkins Coie and Morrison & Foerster lawsuits because it promotes racial discrimination in contract formation.  Cf. Complaint, supra note 10 at 8-9 (discussing Morrison & Foerster’s grant aid offered only to diverse fellows and extension of employment contract for diverse fellows only to prescribed groups as violations of 42 U.S.C. § 1981); Complaint, supra note 9, at 9-10 (explaining claim for racial discrimination in creation of employment contracts brought against Perkins Coie).  The contracts formed between drafted players and teams receiving draft picks pursuant to the Rooney Rule present problems for the Rule’s longevity if Presidents & Fellows of Harv. Coll. is found to be applicable to private employers and workplaces.  See Florio, supra note 5 (discussing NFL’s decision to stand by current Rooney Rule provisions is grounded in belief that Presidents & Fellows of Harv. Coll. ruling only applies to college admissions decisions, not conduct of private employers).  These employment contracts may be construed as a violation of 42 U.S.C. § 1981 because the draft pick providing the basis of the employment contract was granted due to a team’s decision to employ candidates of a specific race or gender.  See Complaint, supra note 10, at 8-9 (explaining type of contract at issue is employment contract upon which rewards and opportunities are granted on basis of individual’s race or other identification with minority group); see also Complaint, supra note 9, at 9-10 (suggesting that grant of contract or employment opportunity based on racial identity of parties violates 42 U.S.C. §1981); see also Tyson Langland, How Rookie Wage Scale Has Changed the Way NFL Teams Draft, Bleacher Rep. (Apr. 8, 2014), https://bleacherreport.com/articles/2021239-how-rookie-wage-scale-has-changed-the-way-nfl-teams-draft (explaining that NFL rookies obtain their employment contracts with teams via NFL draft, and order and frequency of team’s draft picks determines which players are drafted to specific teams).  While it may prove a tangential relationship, it is worth exploring whether the contracts created by these rewarded draft picks violate § 1981 because of implications that may threaten the usage of the Rooney Rule resulting from future court decisions regarding the law firm and capital fund lawsuits.  See generally Complaint, supra note 9, at 9-10 (explaining suit was brought to challenge private company diversity equity and inclusion initiatives open only to minority groups after news broke about Supreme Court’s reversal of affirmative action).

[32] See Salvador, supra note 4 (explaining draft pick provision and benefits for hiring and retaining minority or women coaches, who later leave program to take higher position with another team).  While not explicitly under fire, the Rule seemingly provides a benefit for teams that hire minority coaches and retain them.  See Bryant et al., supra note 13 (indicating that Rooney Rule is not currently under scrutiny after reversal of affirmative action, but league’s granting of compensatory draft picks may fall victim to challenges if affirmative action reversal is applied to private companies).

[33] See Florio, supra note 5 (explaining how limited applicability of Presidents & Fellows of Harv. Coll. was NFL’s basis for claiming Rooney Rule does not require modification); see also Bryant et al., supra note 13 (discussing issues of discriminatory creation of contract prevalent in law firm and Fearless Fund cases are basis for lawsuit).