The U.S. Supreme Court could be poised to strike down affirmative action admission policies it has allowed public and private universities to use, in ruling on a new legal challenge—but numerous corporations, technology firms, expert groups and schools told justices that doing so would stifle the diverse recruit pipeline and needed employee skills they say is key to U.S. innovation and competitiveness.

The high court heard arguments Oct. 31 in two cases brought by the Students for Fair Admission group against Harvard University and the University of North Carolina that the challenger claims violates Constitution and US Civil Rights Act provisions that bar discrimination based on race.

U.S. appeals courts in Boston and Richmond, Va., upheld the schools’ admission policies.

But now supporting the latest challenge against them—as not needed to maintain diversity—are 82 Congressional members, 19 states, several Asian-American groups, 12 economists and various other think tanks and advocates.

According to SCOTUSblog, 33 briefs filed to the court support the challenging group, but 60 favor the universities' position.

“Success in business in America today requires understanding and communicating effectively with this increasingly racially diverse population,” said a group of 33 major corporations that include Air Products and Chemicals, General Electric, Illinois Tool Works, Leidos, KPMG, Dell Electronics, General Dynamics, General Motors, Intel, United Airlines and American Airlines.

“This same logic speaks to why American businesses must continue to increase racial and ethnic diversity at all levels of business,” they said, adding that firms depend on university admissions programs that produce graduates educated in "diverse environments" that offer "essential job-related skills."

The companies stressed that “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,” pointing to engineering expertise, technology innovation, advanced consulting and business leadership.

A group of diverse manufacturing and technology firms, including Applied Materials, DuPont de Nemours, Cummins, Microsoft and Shell USA said in a separate brief that “talent is everywhere,” adding that “for science and technology companies to achieve ... competitive advantages, universities must admit racially diverse classes of students and foster inclusive cultures.”

IBM made clear that without a "STEM workforce defined by both excellence and diversity, innovation will suffer,” urging the high court to reaffirm the longstanding principle that consideration of race as a non-determinative factor is necessary in a flexible and individualized admissions process.

In its brief, MIT said a diverse student body is essential to its educational mission "to prepare graduates to address challenges in a diverse world that is increasingly driven by STEM fields that require effective collaboration among individuals of many races, national origins and backgrounds.”  Stanford University concurred, as did 16 other major private universities.

The University of California said that when a late 1990s state law barred its public universities from considering race in admissions decisions, first-year enrollees from underrepresented minority groups dropped by more than 50% at the most selective campuses.

While its campuses have tried neutral programs to increase diversity of all sorts, including racial, they have struggled to enroll a student body that is racially diverse enough to attain educational benefits of diversity, its brief said. The shortfall is especially apparent at those selective campuses where African American, Native American and Latinx students "are underrepresented and widely report struggling with feelings of racial isolation." it said.

In a separate brief, 25 state bar associations said California’s experience should not serve as a “glib assurance,” but as a “grim warning.”


Marathon Session

The court heard arguments for five hours, with the six conservative justices critical of court precedents that have allowed consideration of race, as well as the Harvard and University of North Carolina programs specifically, said Amy Howe, editor of Scotusblog.

Justice Clarence Thomas pressed lawyers defending the schools’ policies to explain the educational benefits of diversity. “I don’t have a clue” what diversity means, he told Ryan Park, attorney for North Carolina.

But liberal Justice Elena Kagan said universities are “pipelines to leadership in our society,” noting that “our colorblindness comes at a high cost.”

U.S. Solicitor General Elizabeth Prelogar, representing the Biden Administration, noted that diversity is America’s greatest strength, and that while progress has been made [toward equality], she questioned whether there has been enough to eliminate the question of race in university admissions.

Observers speculate that the court decision won't be made in the case until near the end of the current court term next June.