In a post criticizing leading American companies' support for the diversity principle in an upcoming Supreme Court case, National Review Online contributor Roger Clegg mischaracterized the nature of the companies' support for diversity, and incorrectly implied it is race-centric in violation of the Constitution. But as the amicus brief for these Fortune 100 companies argues, the pursuit of diversity in higher education is not only important to the nation's economic success, it is also constitutionally permissible.

In October, the Court will hear Fisher v. University of Texas, the latest high-profile civil rights case brought by a rejected applicant challenging a school's race-conscious admissions process. The opponents are asking the Court to not only strike down the specific admissions policy at the University of Texas, but also to reverse Grutter v. Bollinger, the Court's 2003 case that confirmed state consideration of race or ethnicity in higher education admissions -- as one factor among many -- is permissible to achieve the goal of student body diversity.

Clegg mischaracterized the brief filed in this case on behalf of corporations ranging from Wal-Mart and Halliburton, to Microsoft and Starbucks, that instead urges the Court to “reaffirm its holding in Grutter that the conscious pursuit of diversity in the admissions decisions of institutions of higher education - including diversity based upon race, religion, culture, economic background, and other factors - is a compelling state interest.” 

Clegg wrote:

The brief [] asserts, “It is also critical to amici that all of their university-trained employees have the opportunity to share ideas, experiences, viewpoints and approaches with a broadly diverse student body” (my bolding). Huh? It is critically important that the companies' employees be able to go now, after graduation, to some school and have a bull session with a racially balanced group of students. But why?

Contrary to Clegg's reading, the corporations' brief is not talking about their employees' post-educational experience or the value of a hiring process that practices affirmative action. The brief's central argument is to emphasize for the Court the business value of higher education admissions processes that produce a diverse pool of prospective employees. As the companies explicitly say on the first page of their brief:

Amici recruit employees who are graduates of the University of Texas at Austin (“UT”) or similar leading institutions of higher education. Indeed, amici - who collectively have revenues in the trillions of dollars - hire thousands of graduates of UT and other major public universities every year.

As a result, amici have a vital interest in this case. Amici are directly affected by the admissions policies at UT and similar colleges and universities, and they care deeply about what kind of education and training those institutions offer their students.

Clegg's argument that this case is about “institutionalized racial discrimination” and his dismissal of diversity as “nonsense,” also misrepresent the concept's legality and definition. Constitutional steps to promote diversity in the admissions process for higher education, and the resulting employee pool that companies find valuable, does not just refer to race and ethnicity. Rather, under Grutter, any factor that would lead to a multitude of experiences within the university that enrich everyone's educational environment - athletic prowess, musical ability, parents who are alumni - can be considered. Because of the risk of impermissible discrimination, Grutter specifically disallows a mechanical focus on race or ethnicity in this system - the use of “quotas.” When considering the multiple aspects of an applicant, race and ethnicity can be considered as one among other defining characteristics.

Beyond the legality of policies that promote diversity, the brief also reminds the Court of this process' importance to businesses' bottom line. But Clegg challenged this too:

The brief declares, "Amici have found through practical experience that a workforce trained in a diverse environment is critical to their business success." Forgive me, but amici are bluffing and hoping that the Court will take them at their word.

But the brief does back up its claim that diversity contributes to businesses' economic success with social science evidence supporting diversity's effectiveness toward educational quality for everyone, which in turn produces employees better equipped to perform in an increasingly diverse country and world. In addition, leading social scientists from the country's premier institutions filed a separate amicus brief further explaining this empirical data as well as a second brief detailing the negative consequences of eliminating diversity, consequences that could extend beyond higher education. In their support of constitutionally permissible steps to promote diversity, they join not only corporate America and state universities, but private universities, state governments, the Department of Justice, the U.S. military and dozens of other amici across the ideological spectrum.