A front-page article in the Washington Post last week reported that “several dozen Fortune 500 companies” are filing briefs this week that support the University of Michigan’s use of racial and ethnic preferences in student admissions, in the cases now pending before the Supreme Court. Why would our captains of industry do such a dastardly deed?
We can begin by rejecting the companies’ stated reasons. The public pronouncements — and earlier briefs — by the companies argue that “cross-cultural competence” is very important for their employees, and that it helps companies if this skill is taught to their future employees when they are in school. To sell a Pepsi to a black person, you see, you have to be
a black person, or at least to have learned how to think like one. (This is why Jews, for example, have proved to be so inept in the retail trades, where they have to sell to gentiles.)
Thus, the companies are reasoning as follows: (1) that people tend to be quite different from one another depending on their melanin content, and that therefore the way one deals with, say, a black person is very different from the way one deals with a white person; (2) that these differences cannot be learned on the job quickly; (3) that they also cannot be learned directly, but can instead be learned only by going to a campus that happens to have a particular racial and ethnic mix, where they will magically seep into the student’s mind, as by a sort of osmosis; and (4) that it is so important to learn these differences that it justifies deliberate racial and ethnic discrimination in order to ensure this racial and ethnic mix on campus.
If any of these premises are false, then the argument collapses; in fact, they all are. It seems very unlikely that the people running these Fortune 500 companies are all too stupid to understand that their arguments make no sense. So we must look elsewhere for their real motives.
The most obvious one is that supporting the University of Michigan — and, more to the point, the civil-rights establishment — is like paying protection money to the mob. Companies that don’t fall into the politically correct line are more likely to be sued or boycotted by the grievance industry (that is, the Jesse Jacksons and Al Sharptons and their Johnnie Cochran legal allies), and indeed even the Post acknowledges that “the desire to avoid civil rights lawsuits and boycotts” is part of the companies’ “mix of motives.” As the Post put it, “business has always been content to buy social peace at the cheapest possible price.”
It probably goes deeper than that, however. Most large companies now have “human relations” departments and experts. Those in these positions are institutionally driven to extol the importance of diversity: Their current jobs depend on it (and frequently they are beneficiaries themselves of preferences based on race, ethnicity, and sex).
If I were a lawyer for a university or for the civil-rights establishment, and I wanted to persuade a company to file a brief supporting me, I would start out with a call to the vice president for human relations. He would be easily persuaded that such a brief would be a good idea, and his recommendation to the general counsel (and the president) to file such a brief would put them on the spot. It certainly would be awkward if it ever leaked out that they had turned down this recommendation. And, besides, why should they? As noted above, it’s good insurance.
The presence in most large companies of human-relations departments and experts suggests another reason why these corporations are likely not only to file a brief supporting racial and ethnic preferences, but even to hope that the University of Michigan wins. For years now large companies have done their hiring and promoting with a close eye on race, ethnicity, and sex. That’s what their human-relations experts tell them to do, and indeed they’ve been hired to tell the company how best to do it.
Part of this is purely public relations, but part of it is a fear that, if the company doesn’t look like America, it will get into legal trouble. And this is not an unreasonable fear. No matter how nondiscriminatory a company is, it’s easy to lose a civil-rights lawsuit if its numbers aren’t right. Moreover, if it does any federal contracting — and large companies frequently do — then the Labor Department’s Office of Federal Contract Compliance Programs will insist that it implement goals and timetables to correct any shortages of women and minorities. In large measure, by the way, this is a result of judicial decisions, from the Supreme Court on down, that have pushed companies into hiring and promoting with an eye on race, ethnicity, and sex — and looking the other way when they do.
Thus, if in the Michigan cases the Supreme Court rejects the proposition that a desire for “diversity” justifies discrimination, the companies fear they will have to change the way that they’ve gotten used to operating, or face a significantly heightened risk that they’ll be sued by someone who lost out on a job because he or she was the wrong race, ethnicity, or sex. The Michigan decision might not be directly on point, but it would be close enough to push the lower courts in the direction of nondiscrimination. Companies will then be in a damned-if-you-do-damned-if-you-don’t dilemma: If they don’t get their numbers right, they get sued; and if they keep on eye on their numbers, they get sued, too.
It’s also handy if the top schools do the “race norming” for the company, choosing the top students from each racial group, rather than the top students, period. Under the current system, a large company can send its recruiters to only the most selective schools, and know that it will be able to meet its quotas there, with handy, one-stop shopping. If those schools stop using preferences, then it will be necessary for the company to send recruiters to a number of other schools, too, if it is to keep its hiring numbers right. Those additional trips are a nuisance and added expense.
So, on the one hand, there is the fear of boycotts, lawsuits, and bad publicity, as well as the companies’ own internal pressures. And on the other side? It is true that racial and ethnic preferences are unpopular with the overwhelming majority of Americans, but how likely is it that these Americans will boycott Pepsi or General Motors or Microsoft because the company files a politically correct brief? As the Post acknowledges, “there is little cost in terms of public image for companies that side with Michigan — and potentially large costs for those perceived as indifferent to the interests of minorities.”
If I were a Supreme Court justice, then, I wouldn’t be too surprised or impressed by the sight of big companies lining up with the University of Michigan. They are there, at the end of the day, because the Court’s own decisions — equating racial imbalance with discrimination and allowing discrimination when it’s aimed at racial balancing — have put them there. If the Court starts to move away from this doctrine, then the companies will, too.
— Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia