Those of you thinking about highly qualified talent in the workforce of the future may want to keep an eye on Fisher v. The University of Texas at Austin, a case taken up by the Supreme Court not too long ago. It could blow up your pipeline.

At issue is what’s called “The Top Ten Plan.”  UT fashioned this plan in response to an earlier lawsuit (Hopwood, 1996) that successfully challenged its affirmative action policy.  Under the Top Ten Plan, students in the top 10% of every Texas high school’s graduating class who apply to UT are automatically admitted.  It’s not perfect, but the Top Ten Plan attempts to equalize some factors across school districts and economic circumstances.

There’s still a surprising amount of confusion about affirmative action (AA). Simply put, AA is a legal program designed to prevent or correct discriminatory practices and historical patterns that harm certain groups of people.  This does not involve quotas, lowered standards or reversed discrimination. This does involve, when all else is equal, choosing to increase representation of historically disenfranchised groups.

The confusion extends to the contemporary field of diversity and inclusion (D&I).  In comparison with AA, D&I is a voluntary process of creating a culture where everyone can be engaged in the work. D&I ensures diverse contributions toward shared goals. It improves outcomes and benefits all.

Certainly, progress has been made toward easing the adverse impacts of historical discrimination. But we’re not there yet. And the clock is ticking ever backwards with the Supreme Court’s consideration of Fisher.  This case could end higher education’s ability to promote the vital role of racial and ethnic diversity as part of the academic experience for all students.

Three Reasons Why This Matters

1. Business quality.  Decades of research show that superior outcomes result from inclusive practices and diversity has become almost synonymous with innovation. Should Fisher prevail then, at the very least, businesses looking to recruit and retain highly qualified applicants with backgrounds and perspectives that fit the changing economic, demographic and social environment – and that drive innovation – will have a harder time filling those positions.  Goodbye competitive advantage.
2. Education quality.  Diversity is also a compelling interest in education. A review of that research “consistently demonstrates that a diverse student body adds value to the educational process and to institutions of higher learning” as well as to a broader democratic society.* Texas Monthly reporter and lawyer, Paul Burka, poses a question:  is it time to allow colleges and universities the freedom to decide which students they admit, and how?
3. E-quality. Finally there are those pesky American promises of freedom and equality.  Are bright, motivated young people from economically imbalanced environments – in which kids of color are still grossly overrepresented – equally free to pursue their goals?  Of course not.  The equal protection clause of the 14th Amendment, on which AA is based, is a tool by which they can be.

Digging Deeper

Changes in the AA landscape have not been driven by actual progress. Rather, they’ve been orchestrated by those who use the language of freedom and equality to undermine these principles.  This is the source of the confusion.

In his book, The Assault on Diversity, legal expert and researcher Lee Cokorinos documents the complex network of think tanks, private foundations and legal advocacy groups that has systematically worked to eliminate social justice and equity gains in the U.S. since the early 1980s. The effort is highly organized and extraordinarily well funded. It has engineered and executed sophisticated and highly effective political, legal and media strategies. And its roots are entwined with shadowy parts of U.S. history. Deeper thinking and careful attention are required to combat its effects.

AA and D&I can both be traced to the civil rights movement of the 1950s and ‘60s, though a few visionary companies took voluntary steps to improve race relations as early as the ‘40s. When I look back over my years in the D&I field, all of the concepts that have been so important now pale in comparison with the phrase:  “a few visionary companies.”

While more organizations today are engaged in voluntary processes to foster inclusive cultures, few examine the root causes of the push-back that permeates so much of the environment in which they operate. Indeed, few see it. That push-back has fast become the newest normal. Cokorinos would tell us: this is all according to plan.

In this environment, how does one remain among the visionaries?  Keep thinking about that question.

As we wait for the verdict on Fisher, one can only hope the Supreme Court’s activist bent will be mediated by an understanding of constitutional principles of freedom and equality, and by a longer view of what’s really best for business.