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Good for GM, Bad for Racial Fairness

March 18, 2003|Brian Fitzpatrick | Brian Fitzpatrick is a lawyer in Washington and a former clerk for Supreme Court Justice Antonin Scalia. His views do not reflect those of his current law firm, which has filed a friend-of-the-court brief on the University of Michigan's side.

Racial discrimination is good for the bottom line. So says General Motors in a friend-of-the-court brief it filed last month with the U.S. Supreme Court in support of the University of Michigan's admissions policy. The high court will hear arguments in the case April 1.

GM's sentiments were echoed in a separate brief filed on behalf of other Fortune 500 companies. These briefs show that not only does the American business community support racial discrimination, but it is not very innovative when it comes to its justifications.

The University of Michigan's admissions policy ranks undergraduate applicants on a 150-point scale. Black and Latino applicants receive 20 bonus points. By contrast, applicants with top SAT scores get 12 bonus points and those who write outstanding essays get a mere three.

The companies argue that such discrimination against white and Asian applicants should be permitted because otherwise the number of black and Latino graduates will decline. This, GM says, would "reduce racial and ethnic diversity in the pool of employment candidates from which the nation's businesses can draw their future leaders, impeding businesses' own efforts to obtain the manifold benefits of diversity."

What are the "manifold benefits" of increasing the percentage of blacks and Latinos in the workplace (and thereby reducing the percentage of whites and Asians)? According to these briefs, the principal benefit is a more robust bottom line: Businesses with racially diverse employees can more effectively sell goods to an increasingly racially diverse customer base. GM notes that minorities "wield an impressive $600 billion in annual purchasing power, a number that is increasing exponentially with expanding minority populations."

In short, the Michigan admissions policy makes GM more profitable.

However, not only has profitability never been a legitimate defense to intentional racial discrimination, it was one of the principal arguments that Southern congressmen used in their attempt to defeat the Civil Rights Act of 1964. They argued that if white employees could sell products more effectively to white customers (and black employees more effectively to black customers), they should be allowed to take that fact into account when hiring. This was not bigotry, they contended, but simply an effort to boost the bottom line. These congressmen argued that racial discrimination should be excused whenever race is a "bona fide occupational qualification."

That argument was defeated, and soundly so. Supporters of the act rightly argued that any such defense would be the exception that swallowed the rule. Accordingly, federal courts have held without exception that profitability provides no justification for intentional racial discrimination.

There is little doubt today that the nation is better off for rejecting the profitability exception to the Civil Rights Act. There is equally little doubt that the Supreme Court will find the profitability of GM and other Fortune 500 companies a rather unpersuasive reason to excuse racial discrimination under the 14th Amendment. Some things are more important than money. The Constitution's guarantee of "equal protection of the laws" is one of them.

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