Bench Memos

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Big Business Weighs In, Unconvincingly, in Fisher v. Texas


Predictably, big business has weighed in on behalf of racial preferences in Fisher v. University of Texas, filing an amicus brief with the Supreme Court in the case, which is slated for next term and involves a challenge to the school’s discriminatory admissions policies.

Predictably, because in 2003 a similar consortium “of America’s largest companies” filed a similar brief with the Court in the University of Michigan cases. Predictably, because corporate America has long decided that paying obeisance to “diversity” is prudent politics in a world filled with Al Sharptons and plaintiffs’ lawyers. Predictably, because there are now large corporate bureaucracies headed by folks with “diversity” in their titles, whose salaries depend on this nonsense.

Nonsense, because hiring with an eye on skin color has no logical, empirical, legal, or moral justification.

But let’s take a look at the brief.

It begins by asserting that the companies “must be able to hire highly trained employees of all races, religions, cultures and economic backgrounds.” Well, who’s stopping them? God forbid, I suppose, that they should have to send their recruiters outside the Ivy League if those schools stop “race-norming” for them.

The brief then asserts, “It is also critical to amici that all of their university-trained employees have the opportunity to share ideas, experiences, viewpoints and approaches with a broadly diverse student body” (my bolding). Huh? It is critically important that the companies’ employees be able to go now, after graduation, to some school and have a bull session with a racially balanced group of students. But why?

The brief’s opening summary ends with the declaration that amici “seek to hire the most qualified group of employees, while . . .” While, indeed: That’s the signal that they want to consider something that is quite irrelevant to being “the most qualified.” In this case it means while also weighing characteristics like melanin content.

Okay, well maybe the brief writers were just a little nervous at the beginning. The nub question is: What precisely is it that a diverse environment is supposed to provide — say, exposure to different ideas and viewpoints? But race and ethnicity are poor proxies for how people think (ironically, the brief later warns against “treat[ing] all underrepresented minorities as one undifferentiated group, rather than distinct individuals with different experiences and perspectives” [emphasis in original]). Cultural competence? But, again, upper-middle-class American blacks are not a different species than upper-middle-class American whites, and dealing with either is not much like dealing with, say, South Korean trade officials. Learning to treat all other people like human beings? Surely that lesson can be — and should already have been — learned outside of college. And if the idea is to teach white and Asian students that they ought not to assume that African Americans and Latinos are less academically qualified than they are, then the last thing schools should be doing is creating an environment in which white and Asian students are systematically exposed to black and Latino students who are less academically qualified than they are.

The brief declares, “Amici have found through practical experience that a workforce trained in a diverse environment is critical to their business success.” Forgive me, but amici are bluffing and hoping that the Court will take them at their word. How can companies possibly know that going to a racially diverse school resulted in better employees than had they gone to a somewhat less racially diverse school? This is particularly so for, say, engineers — one of the brief’s preferred examples. And, in any event, it is not at all clear that ending racial preferences in university admissions — which will reshuffle students, not keep them out of school — will result in a net loss of campus-diversity experiences among employees hired by a particular company.

Here’s the grand finale of part I of the brief: One of the amici, Merck & Co., declares that it “drew on the diversity of its employees in order to broaden access to Gardasil, a vaccine that protects against the virus that causes cervical cancer. Recognizing that some populations might not use the vaccine for religious reasons, Merck sought the assistance of its Muslim employees in obtaining Halal certification in order to improve its acceptability and use under Islamic guidelines.”

Okay, now let’s think about this. The preferences at issue in Fisher are for race, not religion. It’s not clear that the typical university’s preference for African Americans and Latinos is going to help, rather than hurt, Muslims. But, in any event, the University of Texas’s admissions policies have no bearing on Merck’s hiring policies. Nor, more fundamentally, is it necessary for Merck to have Muslim employees in order to figure out how to get Halal certification. So how is this little story, which stands at most for the convenience of using religion quotas in hiring, supposed to persuade us that the Supreme Court should approve of institutionalized racial discrimination? I guess we are supposed to think of an analogy by which a company is better able to sell its product to those mysterious Puerto Ricans by consulting with a random, tenth-generation Mexican American in the accounting department.

I will spare you part II, except to note that even these amici “do not take a position on the constitutionality of the specific practices at issue” in this case. Whew — they must be pretty bad (and they are). However, I will note that, in the list of those racial minorities the companies are striving to hire, there is no mention of Asians (nor, again like the University of Texas, any mention of Native Americans). Some diversity hires are more equal than others.


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