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Google, Apple Back Affirmative Action in Harvard Case (3)

Aug. 1, 2022, 11:45 AMUpdated: Aug. 1, 2022, 6:45 PM

Alphabet Inc.’s Google, Meta Platforms Inc. and Apple Inc. are among nearly 80 companies filing a brief with the US Supreme Court in support of affirmative action programs being challenged at Harvard and the University of North Carolina.

The brief filed Monday argues corporate diversity, equity, and inclusion 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,” the brief said. The cases are the first on affirmative action to come before the justices since conservatives gained a 6-3 majority.

More companies signed the amicus, or friend of the court, filing arguing affirmative action is a business imperative than in a 2003 case involving the University of Michigan Law School or two more recent cases involving the University of Texas at Austin.

This time, businesses risk inflaming a conservative backlash against companies taking progressive stances. Diversity, equity, and inclusion advocates say it’s still important for the business community to make its voice heard.

“This is the perfect time for the corporate world to not just sit on the wayside,” said Lael Chappell, the director of insurance distribution at Coalition, Inc. who works on diversity, equity and inclusion issues.

While both Apple and Microsoft had signed at least one brief in the Michigan or Texas cases, companies that joined in 2022 for the first time include Google, Meta, Lyft, Uber, Pinterest, and Verizon.

One notable absence is Arkansas-based Walmart Inc., which signed briefs in both Texas cases.

Other signatories include The Kraft Heinz Company, Mastercard Inc., and United Airlines Inc.

Corporate Argument

In the latest cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina, the plaintiffs say affirmative action not only hurts white applicants, but amounts to an “anti-Asian penalty,” too.

UNC responds that race is only one of “dozens of factors” that the school “may consider as it brings together a class that is diverse along numerous dimensions—including geography, military status, and socioeconomic background.”

“Empirical studies confirm that diverse groups make better decisions thanks to increased creativity, sharing of ideas, and accuracy,” the companies said in support of the universities.

“These benefits are not simply intangible; they translate into businesses’ bottom lines,” they said.

And the increasingly global nature of business makes diversity even more important today that it has been in the past, the companies argued.

International Business Machines Corp. joined a separate STEM-focused brief, noting the increased significance of diversity in the fields of science, technology, engineering, and mathematics.

“While the benefits of a diverse student body are widely observable, they are all the more salient and compelling in STEM, which has historically been marked by greater limitations in diversity than most fields of study,” the brief said.

Changed Environment

Yet, the environment has changed considerably in the six years since the Supreme Court last ruled in an affirmative action case.

Shareholders are pushing companies to disclose racial and gender workforce data, said Heidi Welsh, executive director of Sustainable Investments Institute, an institutional investor research group. A new, separate push focuses on publishing racial justice commitments, she said.

Weighing in on politically controversial issues also carries new risks as stakeholders like employees and legislators press companies in different directions, The Conference Board research group warned in a May 2022 report.

Risks were evident this year when Walt Disney Co. criticized a Florida law that limits what teachers and administrators can discuss with young students regarding sexual orientation after intense employee pressure.

Florida Republican Gov. Ron DeSantis said he viewed Disney’s public comments against the law as “provocation,” and vowed to “fight back.” Weeks later, Florida lawmakers stripped the entertainment giant of is its decades-old special tax status.

More recently, Sidley Austin received a letter from a group of Texas state legislators threatening to sue and hold criminally liable the global law firm’s partnership after announcing it would pay travel expenses for employees seeking abortions in states where they are outlawed. The Supreme Court overturned the constitutional right to an abortion in June.

But companies have gained a greater understanding of the business case for diversity, equity, and inclusion, Welsh said. “In that context, it’s not at all surprising that there would be a lot of companies in support of affirmative action,” despite the potential political backlash, Welsh said.

—With assistance from Greg Stohr and Brian Baxter

(Updates with additional details throughout, beginning with number of participating companies in first paragraph.)

To contact the reporters on this story: Maia Spoto at mspoto@bloombergindustry.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com