Harvard Case Shows Employers What's at Stake in Challenges to Diversity Programs

October 26, 2018

The Students for Fair Admissions lawsuit against Harvard University demonstrates what's potentially in store for an employer defending itself against a sophisticated challenge to its diversity program—particularly one in which the issues are debated in the media as well as in the courtroom.

Lessons for employers:  The plaintiff claims that the university is disadvantaging Asian-Americans with its holistic admissions process.  A decision is likely months away, but there are lessons employers can learn should they become subject to a lawsuit over their diversity practices.

  • Expect senior officers to be put on the stand:  Witnesses called by the plaintiff in the Harvard case include not only chief admissions officers, but current and former university presidents.  They are kept on the stand for long periods of time.

  • The internal workings of your marketing and evaluation processes will be on full display:  The trial exposed details of the different PSAT benchmarks Harvard employed for various students from different racial backgrounds and geographies.  It is also exploring how and why each benchmark was developed.  One reason—a 2013 internal memo forced to the surface showed that using academic performance alone would mean Asian-Americans would take 43 percent of the first-year seats, too many for Harvard.

  • Subjective criteria may need to be measurable:  During one examination, the Dean of Harvard College testified he worried that letting the level of African-American students drop to 10 percent ran the risk of creating a “token” experience.  The judge interrupted, asking him how he measures what’s enough.  “I don’t think there’s a quantitative number,” he said, rather there need to be enough minorities that stereotypes would be “broken.”

  • Be prepared to communicate your rationale broadly:  Reliance on glib slogans, infographics, and carefully crafted legal arguments won’t be sufficient.  The Court’s prior consideration of the Constitution’s Equal Protection Clause means defenders must work from a set of reasoned, well-documented policy arguments that can be incorporated into pleadings.  A good example is a piece published in the Philadelphia Enquirer by the dean of Princeton’s Woodrow Wilson School.  Saying the aim is to “assemble a group of students who will contribute to a robust educational environment,” she argues that “grades and scores have been shown to be imperfect predictors of academic potential and are insufficient to distinguish strengths in domains outside test-taking,” acting to keep out future leaders.

Outlook:  At this time, challenges to affirmative action are focused primarily on educational institutions.  This gives chief human resource officers an opportunity to begin thinking how they would defend their company’s diversity programs from a similar attack.