Companies lobby US Supreme Court to keep affirmative action

As loss in Harvard and UNC cases seems likely, dozens of top corporations argue in filings that they do better with diverse workforces

August 1, 2022
Source: iStock

A coalition of top US corporations has mounted a defence of affirmative action in college admissions, telling the Supreme Court that racial diversity is critical to their operations and profitability.

The group of about 60 companies includes many world-leading tech firms, such as Apple, Google, Microsoft and Verizon. Major airlines, banks and companies involved in food services, healthcare and pharmaceuticals have also added their names to briefs submitted in support of Harvard University and the University of North Carolina.

Both institutions grant some race-based preferences in their undergraduate admissions, which are being challenged by the group Students for Fair Admissions (SFFA).

The Supreme Court has in the past allowed such practices, and lower courts have upheld the Harvard and UNC systems as compliant. But the nation’s top court now has a supermajority of conservative justices who have made clear their intent to revisit established precedents to reflect their political agenda.

In the briefs they filed with the court, the companies cited long lists of academic studies and records of their own experiences demonstrating the overwhelming value of racial and gender diversity.

Those benefits, they said, include the tendency of diverse groups to devise more creative solutions to marketplace challenges, to notice problems overlooked by more homogeneous work teams, and to better serve increasingly diverse and global customer bases.

That shows up on the bottom line, the companies argued. They cited studies that include a 2018 analysis by Harvard Business School researchers showing that venture capital investment partners who shared the same ethnicity had about 30 per cent lower returns as compared with more diverse alliances, and called that type of observation representative of their own experiences.

“Companies whose workforces are racially and otherwise diverse will be better equipped to identify and address any number of scientific and technological challenges,” the coalition argued in its filings with the Supreme Court.

The Supreme Court announced in January that it would review lower court rulings upholding the affirmative action practices of Harvard and UNC, with decisions expected next summer.

Experts had grown resigned to the likelihood that the Supreme Court planned to take this opportunity to weaken or end the right of universities to consider race in admissions, but the companies’ intervention may yet prove crucial.

The court showed its willingness to dismantle established social policy in June with its decision to overturn the nearly half-century-old Roe v. Wade ruling that guaranteed the right to an abortion. A leading voice of the court’s 6-3 conservative majority, Justice Clarence Thomas, has been a consistent critic of affirmative action and has made clear that reversing Roe v. Wade is not the end of his plans for reform.

US companies have played a complicated role in such political jousting, often funding the political forces that create the policies they later oppose. Yet several have grown especially vocal in opposing conservative campaigns in areas that include gay rights and abortion, with dozens – including Microsoft, Amazon and JPMorgan Chase – agreeing after the Roe v. Wade reversal to cover travel expenses for employees who need abortions.

With regard to affirmative action, US companies have evolved in the past half-century from actively opposing racial preferences in their own operations to becoming regular advocates of the idea, especially in educational settings. Opponents of affirmative action in the US nevertheless continue to receive extensive funding from private family foundations that trace their wealth to generations of corporate ownership.

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