on Oct 27, 2022
at 12:10 pm
This article is part of a symposium on the upcoming arguments in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College. A preview of the case is here.
Michael R. Dreeben is a partner and Natalie Camastra and Kelly Kambourelis are associates at O’Melveny & Myers LLP. They were counsel on an amicus brief supporting UNC and Harvard.
The business case for diversity in university admissions is compelling: Diverse workforces — including those with racial and ethnic diversity — perform better, serve their customers and clients more effectively, and enjoy increased profits. And American businesses have a significant interest in how universities consider and admit applicants. They rely on the nation’s leading educational institutions to educate and train their future leaders and employees. That is why nearly 70 major American business enterprises joined an amicus brief in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina to endorse their longstanding view that diversity in university admissions, and in particular the consideration of racial and ethnic diversity in admissions, remains a compelling constitutional interest.
Empirical research and experience demonstrate that racial and ethnic diversity in the workforce is a major contributor to business success. The business amici brief explains that diversity improves decision-making by increasing creativity, communication, and accuracy within teams. And experience in a diverse university environment prepares students to interact with and serve racially diverse client and customer bases and to work with people of all backgrounds. The result is a business community more aligned with the public, more profitable, and more innovative. Study after study confirms that diversity in the workforce contributes to the bottom line. For example, one meta-analysis found that racial diversity in the workforce is associated with increased sales revenue, more customers, greater market share, and greater relative profits. By contrast, other studies have linked racially and ethnically homogenous workforces to poorer business outcomes. Reflecting those performance benefits, 97% of top global enterprises report diversity, equity, and inclusion initiatives that are designed, in part, to foster workplace environments that support diverse backgrounds, experiences, and perspectives.
American businesses cannot foster diverse workforces on their own. They depend on universities to recruit, admit, and train highly qualified, racially and ethnically diverse students to become future employees and business leaders prepared to meet the needs of the modern economy and workforce. Numerous studies confirm that cross-racial interactions and engagement in universities contribute to essential job-related skills. These include critical thinking, problem-solving, and the ability to work cooperatively — all skills that are highly valued in today’s economy. All students benefit from exposure to classmates of different racial and ethnic backgrounds.
The American business community has spoken in a single voice in supporting diversity in university admissions. Since Justice Lewis Powell’s pathmarking 1978 opinion in Regents of the University of California v. Bakke, the business community has consistently filed amicus briefs urging the Supreme Court to reaffirm the importance of student-body diversity in university admissions. And the court has relied on those briefs — most notably in its 2003 decision in Grutter v. Bollinger endorsing Powell’s framework. The business community’s interest in diversity has only grown stronger as the diversity of the U.S. population and consumer base continues to grow.
The court’s decision in these cases thus will have profound significance for the business community. If the court were to halt consideration of race and ethnicity in university admissions as part of a holistic review, it would upend practices that have helped businesses meet their diversity interests for generations. And such a reversal of settled law could have repercussions beyond university admissions. Private businesses are currently allowed to consider race in employment decisions in limited circumstances based on the court’s interpretation of Title VII of the Civil Rights Act. Although Title VII prohibits employers from “discriminat[ing] against any individual because of his race, color, religion, sex, or national origin,” the court determined in United Steelworkers v. Weber that Title VII does not prohibit all race-conscious action. Under Weber, private businesses may in certain defined circumstances adopt affirmative-action plans “designed to break down old patterns of racial segregation and hierarchy.”
At issue in Harvard College is a similar statutory provision. Title VI provides that no one “shall, on the ground of race, color, or national origin” be subjected to discrimination or be denied benefits under federally funded programming. The court has aligned its interpretation of Title VI with its interpretation of the Constitution. But some view this statutory language as barring any consideration of race, even if justified or beneficial, in contrast to the equal protection clause, which permits race-conscious decision-making if it passes strict scrutiny — that is, serves a compelling interest and is narrowly tailored. A holding that Title VI prohibits any consideration of race in university admissions could fuel challenges to Weber-based plans under Title VII.
If the court were to overrule Grutter and extend its reasoning to Title VI and Title VII, those holdings would reverberate throughout the business community. A decision barring all race-conscious action could set back efforts to ensure racially diverse workforces. And a broad decision by the court banning any reliance on race-conscious decision-making could raise questions about even race-neutral measures adopted to promote racial diversity. To avoid creating such uncertainty, the court would do well to heed the business community’s consistent view that race-conscious, holistic admissions programs in colleges and universities continue to serve a compelling interest.