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The High Court

Big Business Backs Affirmative Action at Supreme Court

Big Business Backs Affirmative Action at Supreme Court

Photo illustration by 731; Photograph by Jon Elswick/AP Photo

Some of the biggest corporations in America say that having a diverse payroll helps boost sales, and they want the Supreme Court to keep that in mind as it considers this term’s affirmative-action case. The justices heard oral arguments on Oct. 10 that addressed whether the University of Texas may favor racial minorities in admissions. Aetna (AET), Dow Chemical (DOW), General Electric (GE), Halliburton (HAL), Merck (MRK), Microsoft (MSFT), Northrop Grumman (NOC), Procter & Gamble (PG), Wal-Mart Stores (WMT), Xerox (XRX), and 47 other companies filed a friend-of-the-court brief arguing that the case has bottom-line business implications as well.

“The only means of obtaining a properly qualified group of employees,” the businesses said in the brief, written by the law firm Jenner & Block, “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.”

Merck says having people of South Asian and Arab descent on the payroll has helped drive sales. The company had anticipated that Muslim women would be hesitant to use its Gardasil, a vaccine that protects against the virus that causes cervical cancer. So, Merck told the court in the brief, it “sought the assistance of its Muslim employees in obtaining halal certification”—the Islamic equivalent of the kosher stamp of approval—for the vaccine. “Having a diverse workforce helped us get this product to market faster and ensure that it would be well-received by customers around the world,” says Bruce Kuhlik, Merck’s executive vice president and general counsel.

Darryl Bradford, senior vice president and general counsel of Exelon (EXC), another corporation that joined the brief, says the power company isn’t “in favor of racial preferences, per se, let alone quotas. Instead, we think great universities like the University of Texas ought to be able to consider race as one factor among many.” Asked why large corporations cannot simply hire whom they wish, without colleges using controversial racially oriented admissions policies, Bradford says Exelon seeks “job applicants who have worked together in a diverse student body because that’s the world they will find here.” Universities, he adds, should have leeway to shape those student bodies as they see fit.

Under state law, UT admits three-quarters of its freshmen solely on the basis of class rank, the so-called top-10-percent rule. Because many Texas high schools are heavily Hispanic or black, the system guarantees admission to thousands of minority applicants. UT goes a step further by considering the race of applicants who didn’t finish near the top of their classes. In the case before the court, Abigail Fisher, a white woman who hadn’t made her high school’s top-10-percent cut and was rejected by UT in 2008, contends that the university’s explicit weighing of race put her at an unlawful disadvantage.

Her case could undermine a 5-4 ruling in 2003 in which the Supreme Court said colleges and professional schools may consider race as part of a “holistic” assessment of applicants’ credentials. Changes in the court’s makeup since then have already raised doubts about the viability of that precedent, and questioning from the bench during the Oct. 10 hearing signaled that a conservative majority now seems prepared to rein in affirmative action. “What you’re saying is that what counts is race above all,” Justice Anthony Kennedy, the likely swing vote, told the university’s attorney. “You want underprivileged of a certain race and privileged of a certain race.”

Lurking behind corporations’ concern may be anxiety that the court will issue a broad ruling condemning racial preferences across society in favor of strict colorblindness. That conceivably could encourage white job applicants and employees to file reverse-discrimination lawsuits against businesses that use affirmative action aggressively.

Hoping to avoid such an outcome, the companies reminded the court that its 2003 ruling relied in part on the pragmatic argument—offered in an earlier corporate 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, business asserts, that’s more true than ever.

The bottom line: Fifty-seven companies filed a brief in the Supreme Court arguing that affirmative action is integral to building global workforces.

With Greg Stohr
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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