Harvard Wins Apple, Twitter Backing on Use of Race in Admissions

(Bloomberg) -- Intel Corp., Apple Inc. and Amgen Inc. are among more than a dozen companies supporting Harvard University in a fierce legal battle that could shape the use of race in college admissions for decades to come.

The nation's oldest university is fighting a challenge by Edward Blum, a staunch foe of affirmative action who seeks to stop it from weighing race in student selection altogether. Having lost last year, he appealed in February and, if defeated again, is almost certain to seek a review by the newly conservative Supreme Court.

The stakes for business are laid out in a brief the companies have filed with the U.S. Court of Appeals in Boston. While they took no position on Harvard's specific policy, they said they depend on diverse college student bodies in their hunt for “the next superb employee.” They cited a landmark 2003 decision by the high court that universities can use affirmative action to assemble a varied class if they treat race as one factor among many -- the centerpiece of Harvard's lower-court victory.

“As the Supreme Court recognized nearly twenty years ago, ‘the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people,'” the companies wrote in a “friend of the court” brief, quoting the decision. They said that “in the absence of workable race-neutral alternatives,” affirmative action was still the right means to that end.

The brief, filed on May 21, was the latest in a series of arguments posed to the court after U.S. District Judge Allison Burroughs rejected a lawsuit filed by Blum's group, Students for Fair Admissions. It comes as the U.S. is embroiled in its most contentious struggle over race since the nationwide explosion of protests and riots following the assassination of Martin Luther King Jr. in 1968.

Silicon Valley's diversity record is poor. Yet companies with the most ethnically and culturally varied boards were 43% likelier to post higher profits than similar companies with less representative boards, according to a 2018 McKinsey & Co. study the companies invoked in their brief. To succeed, they wrote, they “must be poised to understand and appeal to” all parts of the population “or be rendered irrelevant.”

Intel was one of the first big corporations to make a stand on diversity, publishing numbers on the makeup of its workforce, tying manager pay to hiring efforts and being openly self-critical. In January 2015 it announced a Diversity in Technology program to achieve full representation of minorities in its U.S. workforce by 2020 and beat that goal by two years, according to the brief. As of September, Intel said, its venture capital arm had invested $381 million in tech companies led by women and minorities as part of an initiative begun in June 2015.

Blum, a persistent and vigorous opponent of race-conscious admissions, has led multiple legal challenges to affirmative action, including at the Supreme Court. The high court has upheld race-conscious admissions for decades but, with President Donald Trump's appointments, now has a conservative majority and may look less favorably on the practice in a new review.

Blum said in an email that the companies that wrote the brief -- which also include Microsoft Corp., Twitter Inc. and Gilead Sciences Inc., maker of the Covid-19 drug remdesivir -- just don't get it.

“Nearly 75% of U.S. citizens of all races oppose the use of race and ethnicity as a factor in college admissions,” he wrote, citing a Pew Research Center poll. “It's bewildering to witness, yet again, how out-of-step these companies are with the vast majority of Americans.”

Read More: Harvard Fights Conservative Assault on Affirmative Action

The Trump administration joined the battle in August 2018, when it claimed in a filing that Harvard's admissions process was “infected with racial bias” and that public funds, which the college draws, shouldn't be used to “finance the evil of private prejudice.”

The suit, filed in 2014, argued the school was breaking the law by engaging in “racial balancing.” Blum's group said Harvard favored African American and Latino applicants and artificially limited the number of Asian Americans it admitted.

In a twist on the epic affirmative action battles of the past, Students for Fair Admissions also said Harvard favored white applicants, and the trial exposed embarrassing details of how far it will go to accommodate the relatives of the biggest donors.

In the end, Burroughs upheld Harvard's argument that to create a varied student body of future leaders, the school needed to consider race as one of many factors beyond grades and test scores. The judge concluded that the Supreme Court allows schools to craft “a reasoned and principled articulation of concrete and precise goals for its race-conscious admissions program.” If the practice were abandoned, she said, racial diversity at Harvard would probably decline “precipitously.”

In its appeal, Students for Fair Admissions says Burroughs erred in her reading of past court decisions, allowing “race to be used in this heavy-handed, limitless way.”

To the companies in the brief, it's simple.

“Talent is everywhere,” they wrote. “It is not located exclusively in any one particular corner of humanity.”