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High Court Affirmative Action Case Could Have Workplace Implications

The forthcoming ruling from the Supreme Court on Fisher v. University of Texas is unpredictable and carries the potential to negatively affect the legality of affirmative action.

June 5, 2013

Although the U.S. Supreme Court is expected to render its ruling on the high-profile Fisher v. University of Texas before the justices' session expires at the end of June, the actual impact of their decision on employers' diversity initiatives appears far less distinct.

There is a chance the ruling, regarding the case of a student denied admission to the university, will undercut the legality of affirmative action programs beyond the education realm. But because affirmative action isn't being directly challenged, both the outcome and significance are unclear. In fact, the ruling of this case could have no effect on affirmative action in the workplace at all.

Georgina Dodge, chief diversity officer at the University of Iowa, said the forthcoming ruling's unpredictability is leading her to be cautious when it comes to Fisher. "I'm taking a wait-and-see approach. I don't want to jump to any conclusions."

The lawsuit was filed by Abigail Fisher, who was denied admission to the University of Texas at Austin in 2008. She missed automatic acceptance to the university under the state's "Top 10 Percent Law," which gives any Texas high school student who graduated in the top 10 percent of his or her class automatic admission to a Texas state university. Because of this, Fisher's application to the school was examined and reviewed with regards to her academic performance and leadership qualities, as well as her race.

Fisher, who is white, sued the university, claiming her rejection was based on her race. Her lawyers argued the state law provided the university with a diverse student population on its own and that the university's consideration of race in the traditional application process was unnecessary and, ultimately, discriminatory.

However, the university claims Fisher would not have been admitted to the school, regardless of her race, simply because her academic credentials were not strong enough, which puts into question whether she has the right to sue the university in the first place. Furthermore, the university argued its consideration of race in the application process was legal under the 2003 Supreme Court decision reached in Grutter v. Bollinger, which upheld the validity of the University of Michigan's affirmative action procedures in its admissions process, according to the initial petition filed with the Supreme Court.

When the Fisher ruling is finally delivered, it could have implications for diversity initiatives at U.S. employers. Many companies use the principle of affirmative action in hiring and promoting workers—meaning they consider racial diversity in these activities.

"In the big picture, what's at stake is the use of race as a factor in consideration for college admission and hiring in the public sector," said Jon Hyman, a partner at Cleveland-based law firm Kohrman Jackson and Krantz and an employment law blogger for Workforce.

Hyman says there are "a bunch of potential outcomes." And because Justice Elena Kagan recused herself because she was solicitor general when the Justice Department filed an amicus brief in the case when it was in the U.S. Court of Appeals for the 5th District, Hyman said he wouldn't be surprised if "the court punts" and waits for a case with all nine justices able to rule.

Even if the court rules in favor of Fisher, Hyman doesn't see any major changes coming for affirmative action programs, which, according to the U.S. Labor Department, are intended to "advance qualified minorities, women, persons with disabilities, and covered veterans."

"It's a long shot for this court to gut affirmative action. I don't see this court doing that," Hyman said. "The court has too much respect for precedent; it would be unusual for them to reverse 40 years of precedent. That's not how our judicial system works. Affirmative action will survive in one way or another—the question is, in what form?"

While a court ruling in favor of Fisher potentially carries negative consequences for affirmative action, Iowa's Dodge said those consequences may have no effect on the pipeline of diverse talent in the U.S. workforce.

"We may have two different outcomes in colleges and the workforce" as a result of the ruling, Dodge said. "What will happen as a result of Fisher is hard to tell. People think universities are always leading the way. But sometimes it's the opposite. If the corporate world is demanding one thing—like diversity, which is valuable in today's economy–it will work to attain it."

Max Mihelich is a Workforce associate editor. Comment below or email mmihelich@workforce.com. Follow Mihelich on Twitter at @workforcemax.