Affirmative Action Case May Have Employment Impact

By Allen Smith Dec 14, 2015

A Supreme Court case asking whether affirmative action is allowed in higher education may have ripple effects among employers.

If the court rules that the affirmative action program of the defendant in the case--the University of Texas at Austin--is not acceptable, it will become more difficult for employers to use voluntary measures to increase diversity, predicted Joe Weiner, an attorney with the Littler law firm in Minneapolis.

The Supreme Court heard oral argument in the case on Dec. 9.

Second Time Around

The case has reached the Supreme Court once before in 2013.

The University of Texas has a policy of admitting 75 percent of students in the freshman class who are in the top 10 percent of their graduating high school class throughout the state. The remaining 25 percent of admitted students are admitted based on other factors, including their leadership, activities, work experience, community service, SAT score and race.

After Abigail Fisher, a white student who was not in the top 10 percent of her class was denied admission in 2008, she sued, challenging the university’s admissions policy as unconstitutionally relying on race. The university defended its policy, noting that it tried for several years to not factor in race for the additional 25 percent of each incoming class, but the number of minorities admitted during that time dropped.

On June 24, 2013, the high court sent the case back to the district court to determine whether the university had to consider race to meet its diversity objectives and whether any other approach would work, explained Donald Lawless, an attorney with Barnes & Thornburg in Grand Rapids, Mich.

Over the past two years, the lower courts concluded that Texas had made that showing. Now the Supreme Court will decide whether it agrees.

Workplace Relevance

Higher education is one area where the Supreme Court has been the most tolerant about race being considered in some manner in selecting one person over another, Weiner said. If the court strikes down the University of Texas’ approach, employers’ voluntary affirmative action and diversity programs may be more open to race discrimination challenges, he predicted.

Employers have found that a diverse workforce results in benefits for businesses. As Weiner stated in a friend-of-the-court brief in the case, “Recognizing the importance of diversity to success, employers prefer to recruit at colleges with diverse student bodies.”

He added in the brief, “Achieving diversity on campus satisfies the twin goals of better employment opportunities for all students and directly meets businesses’ demand for well-qualified, diverse workers.”

Weiner explained, “The importance of diversity to success in business is supported by multiple studies showing that a diverse workforce provides significant business benefits. Specifically, increasing racial diversity in the workplace increases sales revenue, increases the number of customers, increases market share and ultimately, increases profits. … Increased racial diversity leads to increased employee productivity and performance, decreased lawsuits, increased market opportunities, increased recruitment, increased creativity and a healthier business image.”

Skeptical Justices

However, several justices expressed doubt about the need for University of Texas to consider the race of its students applying for admission.

Justice Antonin Scalia said, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well.”

Gregory Garre, an attorney with Latham & Watkins in Washington, D.C., who is representing the University of Texas, replied, “Frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.”

“What unique perspective does a minority student bring to a physics class?” Chief Justice John Roberts Jr. asked. “You’re counting those among the classes in which there are no minority students and I’m just wondering what the benefits of diversity are in that situation.”

Garre responded that the court had accepted in previous cases that student body diversity is a compelling interest. “Our objective is the educational benefits of diversity in the very way that this court has recognized for decades,” he said.

Solicitor General Donald Verrilli Jr., arguing on behalf of the university, said University of Texas’ plan has all the “hallmarks of a narrowly tailored plan. No quota. Everybody competes against everybody else. No automatic award of points. [A] modest factor.”

There ensued a lengthy discussion over whether affirmative action is needed so that minorities will be represented in the armed forces’ officer corps.

Justice Samuel Alito Jr. asked, “Is there anything to suggest that the top 10 percent students are less likely to enroll in ROTC or, when they do, they’re not as good as the holistic admittees?” The holistic admittees are the ones admitted partly on the basis of such factors as leadership and, occasionally, race.

“No,” Verrilli answered. “This is an important interest for the United States generally, that when you think about what’s at stake here, the interest in ensuring that we have military officers who can lead a diverse military force is critical.”

And, he added, “Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical.”

Justices in Favor of Diversity

Other justices seemed to be leaning in favor of University of Texas sometimes taking race into account during the admissions process.

Bert Rein, an attorney with Wiley Rein in Washington, D.C., representing Fisher, suggested that the increase in the number of admitted minority students since Texas has considered race as a factor is very small. The percentage of black students who were holistic admittees nearly doubled during the first three years after race was taken into account as a factor, though. And the percentage of Hispanic students who were holistic admittees during that time rose from 11.6 to 16.9, Justice Sonia Sotomayor said. “I don’t think that’s a small change,” she said.

Justice Ruth Bader Ginsburg expressed concern that the 10 percent plan itself is “so obviously driven by one thing only and that thing is race. It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.”

Rein responded, “The top 10 plan does not classify anybody by race.”

Justice Stephen Breyer noted that when Texas had just the top 10 percent admission criteria and 25 percent admitted for desirable qualities that did not factor in race there was “hardly anybody who is African-American or Hispanic. And seven years of experience with that kind of thing led the faculty at meetings, administrators and others to say, 'We should do more to see that that 25 percent has occasionally somebody who is a minority.' ” He asked, “Why is that not a diversity-related judgment of what is necessary?”

Rein denied that people are admitted on the basis solely of desirable qualities apart from class rank. Those factors are “only part of the admissions criteria,” but class rankeven outside the top 10 percentremains relevant.

Justice Anthony Kennedy asked whether the case needs to be sent back to the district court for more evidence that Texas’ approach was needed. Justice Elena Kagan will not vote in the case, as she was involved in the case when she was solicitor general.

This case is Fisher v. University of Texas, No. 14-981.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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