A large cross-section of corporate America filed briefs with the Supreme Court on Aug. 1 urging the court to allow colleges to continue using race as a factor in student admissions.
The court is poised to hear challenges to these racially discriminatory policies in its new term that begins in October. The challengers say so-called affirmative action not only hurts white applicants, but works out to be an “anti-Asian penalty” as well. Asian American applicants generally have higher academic scores and higher extracurricular scores, they say.
Some legal observers speculate that the nine-member court—whose six-member conservative majority broke new ground in June by curbing environmental regulatory powers, declaring that the court was wrong to recognize a constitutional right to abortion 49 years ago, and declaring that there is a constitutional right to carry firearms in public for self-defense—wouldn’t have agreed to hear challenges to race-based college admissions unless it intended to curb them.
The use of race-based criteria by institutions of higher learning in the admissions process isn’t popular in the United States.
Surveys from both Pew Research Center and Gallup have indicated that nearly 75 percent of Americans of all races “do not believe race or ethnicity should be a factor in college admissions.”
The new influx of friend-of-the-court briefs filed by around 80 major corporations came after legal experts told The Epoch Times earlier this year that the Supreme Court may end the use of race-based so-called affirmative action in college admissions in cases that may be heard in the fall.
Their radical legal advocacy aligns the nation’s big businesses with left-wing activists such as advocates of Marxist-derived critical race theory who say race-conscious government policies are essential to dismantle the systemic racism they say pervades the American experience.
Critics, on the other hand, say using race in the college admissions process is both anachronistic and wrong.
They quote then-Supreme Court Justice Sandra Day O’Connor, who believed the policy was a necessary evil. In Grutter v. Bollinger (2003), she wrote, “We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today.”
Making race-focused admissions decisions is “dangerous,” O’Connor wrote, calling it a “deviation from the norm of equal treatment.” Such programs must “be limited in time,” she stated, adding that “all governmental use of race must have a logical end point.”
Taking the opposite tack, about 70 big businesses argued in a friend-of-the-court brief (pdf) filed with the high court that race-based discrimination improves the corporate bottom line and assures the nation’s educational institutions will churn out employees able to compete in the economy.
“While the benefits of diversity are real and tangible—and corporate DE&I [i.e. diversity, equity, and inclusion] programs seek to maximize those benefits—[the corporations signing the brief] do not recruit applicants in a vacuum.”
“To succeed, these DE&I efforts depend on university admissions programs that lead to graduates educated in racially and ethnically diverse environments. Only in this way can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”
“There is no doubt that people of all races and ethnic backgrounds deserve a seat at every table and that increasing racial and ethnic diversity throughout [the signers’] workforces is the right thing to do. Although [the signing companies] believe that this is reason enough to seek out racially and ethnically diverse employees and to promote diverse leaders, this brief explains a wide variety of research-backed, tangible ways in which racial and ethnic diversity improves business.”
“Empirical studies confirm that diverse groups make better decisions thanks to increased creativity, sharing of ideas, and accuracy,” the brief claims.
“And diverse groups can better understand and serve the increasingly diverse population that uses their products and services. These benefits are not simply intangible; they translate into businesses’ bottom lines. For these reasons, it is no surprise that companies are investing substantially in diversity initiatives—a concrete acknowledgment of the value of a racially diverse workforce and leadership structure to business success.”
The briefs came after the court agreed earlier this year to hear Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College, court file 20-1199, and SFFA v. University of North Carolina (UNC), court file 21-707. The cases were consolidated and were going to be heard together, but the court changed course and on July 22 ordered (pdf) that they be heard separately.
That will permit the court’s newest justice, Ketanji Brown Jackson, to participate in the UNC case, while she is recused from the Harvard case. Jackson is a graduate of Harvard’s undergraduate college and its law school, and recently wrapped up a six-year term on the Harvard Board of Overseers, which is the university’s second-highest governing body. She didn’t participate in the consideration of the July 22 order.
Considered a conservative group, SFFA calls itself “a nonprofit membership group of more than 20,000 students, parents, and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional.”
Harvard and UNC are, respectively, the oldest private college and the oldest public college in the United States.
Among the Silicon Valley giants to put their names to briefs supporting the use of racial criteria in admissions are Adobe Inc., Airbnb Inc., Apple Inc., Dell Technologies Inc., Google LLC, Intel Corp., LinkedIn Corp., Logitech Inc., Lyft Inc., Meta Platforms Inc. (formerly Facebook), Microsoft Corp., PayPal Inc., Uber Technologies Inc., and Verizon Services. Companies in the financial services industry to sign onto briefs include American Express Co., American International Group Inc. (AIG), KPMG LLP, and Mastercard Inc.
Big Pharma interests signing briefs include Amgen Inc., Bayer US LLC, Bristol Myers Squibb, Gilead Sciences Inc., GlaxoSmithKline LLC, Jazz Pharmaceuticals PLC, Johnson and Johnson, Merck and Co. Inc., and Procter and Gamble Co.
Other large corporations signing onto briefs include Alaska Airlines Inc., American Airlines, General Dynamics Corp., General Electric Co., General Motors Co., Hershey Co., IKEA Retail U.S., Kraft Heinz Co., Northrop Grumman Corp., Paramount Global, The Prudential Insurance Co. of America, and Starbucks Corp.
A DE&I consultant welcomed the support from big businesses.
“This is the perfect time for the corporate world to not just sit on the wayside,” Lael Chappell, the director of insurance distribution at Coalition Inc., told Bloomberg.