Monday October 8, 2012, 7:16 am
Bloomberg Businessweek
Politics & Policy
The Corporate Case for Affirmative Action
By Paul Barrett on October 05, 2012

On Wednesday, Oct. 10, the U.S. Supreme Court will hear arguments on whether universities may favor racial minorities in admissions. The case presents a delicate constitutional question about the meaning of “equal protection” and poses a major test for John Roberts, the Republican chief justice who last June outraged many conservatives by joining four Democratic colleagues to uphold President Barack Obama’s health-care overhaul. Will Roberts again defy ideological expectations to endorse affirmative action in undergraduate admissions? Or, more likely, will he reiterate his past opposition to race-conscious policies—and in the process, make clear that his deciding vote on Obamacare was an anomaly in political terms?

If large corporations have their way, Roberts will lean left and find a way to justify racial preferences. Business, especially big business, began to embrace affirmative action in the 1980s. Corporations do not want the Supreme Court to condemn preferences in broad terms, potentially exposing employers to a new wave of reverse-discrimination suits filed by white applicants and employees.

Business also contends that, constitutional principles aside, affirmative action works. To succeed, corporations “must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds,” asserts a “friend of the court” or amicus brief (PDF) filed on behalf of 57 of the best-known names in industries ranging from manufacturing to insurance, high-tech to retail. “It also is critical” to employers, the brief adds, that “all of their university-trained employees have the opportunity to share ideas, experiences, viewpoints and approaches with a broadly diverse student body.”

The corporations making this plea for racial pragmatism run the alphabetic gamut from Abbott Laboratories (ABT) to Xerox (XRX) and include Aetna (AET), Dow Chemical (DOW), General Electric (GE), Halliburton (HAL), Microsoft (MSFT), Northrop Grumman (NOC), PepsiCo (PEP), Pfizer (PFE), Procter & Gamble (PG), and Wal-Mart (WMT), among many others. “The only means of obtaining a properly qualified group of employees,” the businesses add, “is through diversity in institutions of higher education, which are allowed to recruit and instruct the best qualified minority candidates and create an environment in which all students can meaningfully expand their horizons.” Jenner & Block, a prominent corporate law firm, wrote the amicus brief.

The case, Fisher v. University of Texas, was originally filed on behalf of Abigail Fisher, a white woman rejected by UT. Fisher argued that the school violated her constitutional right to equal protection under the law by considering race as one factor in admissions, a policy designed to boost black and Hispanic enrollment. Fisher’s appeal constitutes an attack on a 5-4 ruling in 2003 in which the Supreme Court said colleges and professional schools could consider race as part of a “holistic” assessment of an applicant’s credentials. Justice Sandra Day O’Connor wrote the majority opinion in the 2003 case; she has since retired and been replaced by Samuel Alito, who, like Roberts, is an appointee of former President George W. Bush. Both Alito and Roberts are outspoken skeptics of racial preferences.

Under Texas law, the university admits most of its freshman class solely on the basis of class rank. As explained by Greg Stohr of Bloomberg News: “Because many Texas high schools are heavily Hispanic or heavily black, the system guarantees admission to thousands of minority applicants.” Roberts “has made clear he sees race neutrality as a constitutional imperative. In a 2007 ruling that put new limits on efforts to integrate public grade, middle, and high schools, he wrote that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’”

The University of Texas case elicited an extraordinary 73 amicus briefs backing the school’s attempt to defend its admissions rules, including one (PDF) filed by the Obama administration. Seventeen briefs, from conservative organizations and others, were filed on Fisher’s side. (You can find the entire roster here.)

The Jenner & Block brief notes that in its 2003 ruling, the Supreme Court relied in part on the argument—offered in a corporate amicus brief–that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Nine years later, Jenner & Block adds, that perspective has proved truer than ever.

Monday October 8, 2012, 8:02 pm
Thanks J.L. for the post. It will certainly be interesting to see how CJ Roberts leans on this. This term of SCOTUS is packed with so many "goodies" we may just need a score card to follow the proceedings. Read and noted.

Monday October 8, 2012, 9:18 pm
Perhaps not just a score card, John, but a series of Bingo cards? You cannot currently send a star to John because you have done so within the last week.

Tuesday October 9, 2012, 11:48 pm
Thanks.

Wednesday October 10, 2012, 4:55 pm
ty

Wednesday October 10, 2012, 5:13 pm
You are welcome Giana and a y m.

Wednesday October 10, 2012, 6:37 pm
Thanks for the share!

Wednesday October 10, 2012, 6:44 pm
You are welcome Talya!

Saturday October 13, 2012, 1:16 am
"Business also contends that, constitutional principles aside, affirmative action works."

So this time business-interests are supposed to override the constitution? These corporations which very few people on Care2 trust when they say "The sky is blue" must be entirely honest now, when they have enormous sums of money on the line with all of those potential discrimination-lawsuits. (There is no "reverse" about it. This question is whether racist policies are legal due to mitigating circumstances.)

Any manager or teacher will tell you that it is normally a whole lot easier to work with people of one's own culture. Mixture may be useful for dealing with clients, brainstorming, and for some other purposes, but not for smooth functioning within the company.

Saturday October 13, 2012, 7:14 am
Stephen, sounds like a perception based on anecdotal evidence rather than the vast body of research where the findings differ from your perception. Business-interests have been complying because it did indeed work for them, including the way you do not believe--similar to the findings of the businesses supporting gay marriage because it also improves their ability to recruit the talent they need no matter what the culture, ethnicity, sexual orientation, gender, nation of origin...Thanks for livening up the discussion thread!

Saturday October 13, 2012, 8:30 am
Hi J.L.A. :)

I'm always happy to have a lively conversation. It certainly makes more sense to be more accepting because, just like you said, that widens the recruitment-pool. However, It's the willingness to allow the diversity, not the diversity itself, which is beneficial in this way. For many jobs, the recruitment-pool remains limited to the graduates of relevant university-programs, changing the membership of the recruitment-pool would not reduce its size, and making it completely merit-based would increase the quality of potential recruits. This would allow greater access to greater talent. I based my earlier comment on a challenge often faced by migrants, adapting to the local work-culture and holding a job.

On the other hand, different cultures can lead to different aptitudes in different things, and a company may need many people with the same knowledge-base and different aptitudes. Anyways, that would certainly benefit a company that needs diversity of basic aptitudes (which are not acquired through training). For example, a macho culture may make someone better at high-profile (or high-pressure) solo work while the opposite might make someone a better team-player. That said, it would likely still work better for universities to check for those different aptitudes directly (for example, by revising the SATs to make them useful, divide them into sections by which aptitude is being tested, and then using a variable weighting-scheme, going down the list from top-applicant to the bottom, but reducing the value of a section as students with very high scores in it are accepted, and thus changing the list as they go in a way that, while extremely tedious to do by hand, can be easily automated) rather than just go for different cultural groups.

Saturday October 13, 2012, 8:51 am
Stephen, many very good observations and points. One question for consideration regarding migrants: perhaps it isn't so much the fact of belonging to this group as to whether or not and/or degree of time spent in the US prior to hire for acculturation opportunities (e.g., recruited directly from abroad, prior US internships, etc.)?

Saturday October 13, 2012, 5:14 pm
Hi J.L.A. :)

I don't have numbers, but it probably makes a huge difference how long migrants have had to acclimatize. After all, they generally do acclimatize eventually. The trouble is that some do not and others can take years, during which time one does not want to keep paying them to work on a team with which they cannot work. It depends on their culture of origin. Migrants from Canada or much of Western Europe probably acclimatize very quickly. The norms in some parts of Asia are very compatible with working here. Even within an ethnicity, subculture-differences can have a huge effect: Imagine religious conservative Iranians or Saudis, used to the midday prayer-breaks, heavily conservative dress-codes, sensitivity to Islam, etc. trying to work here. At the same time, I have had great Saudi classmates, Iranian professors, and am friends with some Iranians whose biggest problem adapting was not realizing how little they had to change. One thought that you have to have a significant other at all times to effectively take part in American society, so she panicked about being socially isolated when she broke up with her boyfriend.

On the other hand, it might be difficult for someone coming from a traditional Spanish work-environment, where work-ethics developed around the fact that it could easily be too hot to work in the middle of the day, to adapt to the lack of a break and the shorter overall work-day. I would be reluctant to hire someone from that background for any job which requires working the standard U.S. workday. Then there are the horror-stories which I have heard about work-ethics in Malaysia (from a friend who worked for the UNHCR there) and what I heard about traditional Arabs' lack of meticulousness. "The motto at Akbar's Death-Trap Auto-Repair is: If God wills it, the brakes on your car will work." More seriously, the "If God Wills It" attitude is apparently so common that it even gets into the maintenance of their military gear and screws up their armies. I don't have a problem with working with Malays or Arabs, even though the differences in work-ethic (and expected work-ethic of colleagues, and habits or practices related to colleagues' expected work-ethics) can take a very long time to change, but only if they meet the same standards as everyone else, or make up for it with some aptitude that is rare among other cultures.

Sunday October 14, 2012, 1:58 pm
Stephen, thanks for providing so may examples of how culture intersects with types of skills and possible impacts on the workplace--added considerably to appreciating the complexity of this issue and the impacts of this SCOTUS decision.