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In her opinion for the Supreme Court in Grutter v. Bollinger, Justice Sandra Day O’Connor stressed that the “educational benefits that flow from student body diversity” are “not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” She cited amicus briefs filed by 3M, et al., and General Motors, and the media gave great play to the support of Corporate America for racial and ethnic preferences in university admissions. So, now that the Court has given its tentative approval to continued discrimination-in-the-name-of-diversity by universities, does that mean that companies have a green light to do so in their own hiring and promotion? The answer is no. And, besides, they should not want to. The pressures on companies to use racial and ethnic preferences come from both outside and inside, but their roots are rotten. ILLEGAL AND UNJUSTIFIED Perhaps the most notorious of outside pressures on companies are the regulations adopted by the Labor Department to enforce Executive Order 11,246. Those regulations — designed to implement the executive order’s requirement that those contracting to do work with the federal government have “affirmative action” programs — are almost certainly illegal. The regulations require that whenever the “incumbent” percentage of “minorities or women” is less than “their availability percentage,” the company must implement “goals and timetables” to address this disparity. This is obviously discriminatory, inasmuch as a disparity that involves nonminorities or men triggers no similar “goals and timetables.” Several cases in the D.C. Circuit — the most relevant for interpreting any administrative regulations — have struck down similar goals and timetables by other federal actors. The only issue, then, is whether the regulations’ discrimination can be justified. It is hard to see how. As a matter of Title VII law, disparate treatment is excusable only if there is a “manifest imbalance” in a “traditionally segregated job category.” The affirmation action regulations go way beyond that. And as a matter of constitutional law, any remedial rationale is unavailable, since it is stricter than Title VII’s rules for employers, and the Labor Department cannot credibly claim that it is acting to remedy its own discrimination. There is no federal court that recognizes an employment diversity rationale under Title VII (two circuits have rejected it). Nor, in any event, could the rationale justify an across-the-board requirement of goals and timetables, no matter what the business. But even if such discrimination in the name of diversity were permissible, companies’ reevaluation of whether they should want to “celebrate diversity” in this way is long overdue. First, there’s no logical justification for the practice. The need for “cross-cultural competence” in an “increasingly global marketplace” is typically asserted. But there’s no reason to suppose that such competence can’t be taught to all races, or that having a Spanish surname or black skin magically makes you understand how everyone else with a similar name or skin thinks. In his 2002 book American Skin, Leon Wynter — who created and wrote the “Business and Race” column for The Wall Street Journal for 10 years — concludes that ethnic marketing is on its way out because it makes less and less sense as those markets blur (except in the obvious and narrow instance of advertising in a particular foreign language). Nor is there any empirical justification for sacrificing merit on the altar of diversity. An article 10 years ago in Forbes calculated the cost of preferences to the economy at well over $225 billion in 1991, or 4 percent of the gross national product. Likewise, the most recent study concludes that there is no correlation between diversity and improved company performance. Professor Thomas Kochan of Massachusetts Institute of Technology’s Sloan School of Management published a study this past spring observing that “there is virtually no evidence to support the simple assertion that diversity is inevitably good or bad for business.” Therefore, he concludes, “The diversity industry is built on sand.” A REALLY BAD IDEA So who came up with this bad idea? Let’s examine its taproot. In 1990, R. Roosevelt Thomas Jr. wrote his very influential article, “From Affirmative Action to Affirming Diversity,” for the Harvard Business Review. The article is now legendary, and is inevitably cited as the seminal discussion that started companies’ “celebration of diversity” (indeed, the phrase itself is apparently drawn from Thomas’ article). But it is baffling why this should be so. Every corporate manager should read the original article. It is, by turns, either anti-preference, platitudinous, or gibberish. It never makes a plausible case for what the celebration of diversity has become. The anti-preference theme is explicit: “Sooner or later, affirmative action will die a natural death,” begins the article, because its “assumptions and priorities look increasingly shopworn”; prejudice is not the problem it once was, and “affirmative action is a red flag to every individual who feels unfairly passed over and a stigma to those who appear to be its beneficiaries.” Thomas “doubt[s] very much that individuals who reach top positions through affirmative action are effective models” and “upward mobility for minorities and women should always be a question of pure competence and character unmuddled by accidents of birth.” He specifically criticizes “special training, tracking, incentive, mentoring, or sponsoring programs for minorities and women.” (Elsewhere, however, the article is inconsistent in its opposition to preferences.) On the article’s last page, Thomas suggests a simple test for rooting out bad policies in this area: “Does this program, policy, or principle give special consideration to one group? Will it contribute to everyone’s success, or will it produce an advantage for blacks or whites or women or men? Is it designed for them as opposed to us? Whenever the answer is yes, you’re not yet on the road to managing diversity.” The critical problem with Thomas’ article — and it has characterized the diversity movement ever since — is that it argues that companies must get rid of policies that exclude the participation of women and minorities. But it does a very poor job of identifying what such policies might be. PLATITUDES AND GIBBERISH The obvious ones, of course, are policies that are deliberately discriminatory. Thus Thomas criticizes a corporation that is unwilling to apply the same performance standards for women and minorities that it does for white men; or whose mentors are willing to sponsor only those of their own race and sex. But the 1964 Civil Rights Act had already made such acts illegal; you don’t need a high-priced consultant to figure out that they’re inappropriate. Thomas is speaking in platitudes. What other policies is he talking about? He doesn’t say. The only example is in a sidebar about Corning, which decided that it gave too much value to working late, so “that managers tended to look more at the quantity than at the quality of time spent on the job, with predictably negative effects on employees with dependent-care responsibilities.” Fair enough. But otherwise one is left to suspect that the problem is not that most companies’ demands are unreasonable, but that a disproportionate number of minorities and women are unwilling or unable to meet them. If diversity is supposed to replace discrimination against white men, and if it’s already accepted that we shouldn’t discriminate against minorities and women, then what is Thomas advocating that is new — that is not simply discrimination? Perhaps you can find it here: “Corporate culture is a kind of tree. Its roots are assumptions about the company and about the world. Its branches, leaves, and seeds are behavior. You can’t change the leaves without changing the roots, and you can’t grow peaches on an oak. Or rather, with the proper grafting, you can grow peaches on an oak, but they come out an awful lot like acorns — small and hard and not much fun to eat. So if you want to grow peaches, you have to make sure the tree’s roots are peach friendly.” Then again, maybe you can’t. So Thomas’ seminal article is completely unpersuasive, the regulations for Executive Order 11,246 lack any legal basis, the best evidence shows no empirical justification for racial and ethnic preferences, and there is no logical or moral justification for such discrimination, either. Maybe it should stop. Roger Clegg is general counsel of the Center for Equal Opportunity, a Sterling, Va.-based think tank. Clegg can be reached at [email protected]. “Discriminating Eye” appears bimonthly in Legal Times.

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