You'd think Microsoft would have had enough by now, but the software leviathan is back in court, and brazen ingrate that it is, it's taking on the Bush administration. At least, by proxy. In a rare fissure between George W. Bush and big business, Microsoft has banded together with 64 fellow Fortune 500 companies, from Alcoa to Xerox, to file an amicus brief supporting the University of Michigan in the two affirmative-action cases pending before the Supreme Court -- cases in which the Bush administration has filed an opposing brief. And card-carrying corporate types aren't the only unlikely defenders of racial and ethnic preferences. While it's no surprise to see the United Negro College Fund, Sen. Ted Kennedy (D-Mass.) and the National Organization of Women's legal defense fund filing in favor of affirmative action, it is somewhat odd to see retired Gen. Norman Schwarzkopf and a parade of former top military brass taking up the cause. After all, the military -- which greeted President Clinton's attempt to allow gays to serve openly in the armed forces as if he were suggesting arming the 101st Airborne with squirt guns -- hasn't always been a bastion of socially progressive thinking.
In other words, corporate America and the military, the two biggest beneficiaries of Bush administration largesse, are publicly breaking with the administration on racial preferences. Not only that, they're making their stand at a time when the public largely opposes affirmative action. A mid-January poll done for Newsweek by Princeton Survey Research Associates found that 68 percent of Americans -- and 56 percent of minorities -- oppose preferences for blacks in college and university admissions. Preferences for Hispanics and Asians fared even worse. (For the record, athletic and legacy preferences were the least popular, while preferences for "musicians and students with other special talents" fared slightly better than preferences for Hispanics.)
So why are these two pillars of the establishment taking on both the mainstream and the Bushies? Has the spirit of Rosa Parks been sweeping the corporate boardroom and the officers' mess? Probably not. In fact, the corporate and military briefs show just how conservative some of the arguments for affirmative action have become.
The 64 Fortune 500 companies argue in their brief that they have a "vital interest" in the continuation of affirmative action, and that a diverse workplace "is important to amici's continued success in the global marketplace." A diverse workforce, the brief goes on, is more innovative, more receptive to the needs of a varied clientele, better suited to an increasingly international business climate and less likely to discriminate against other workers. Diversity is, then, if not what former Supreme Court Justice Lewis Powell called a "compelling state interest," at least a compelling corporate interest. As Oakland, Calif.-based diversity consultant Jacob Herring puts it, diversity helps people "become aware of their assumptions, the assumptions that made you successful three months ago and that, if gone untested, will torpedo you. It's a skill; becoming aware of your assumptions and testing them is a skill."
The brief, however, offers no evidence to substantiate these claims. And while talking to businessmen and women does yield plenty of anecdotes regarding contracts lost because of racially insensitive comments or cross-cultural faux pas, studies linking diversity and improved performance are few and inconclusive. It's an understandable dearth given the difficulty of measuring things such as innovation or receptivity to different cultures; nevertheless, without a more compelling link to the bottom line, this doesn't seem to be the sort of rationale that drives a large corporation to take a public stance.
But simply taking a stance is part of the point. Whether a company's been in the news for blocking cheap AIDS drugs in Africa, busting unions in Latin America, cooking the books or, in Microsoft's case, fighting off discrimination lawsuits filed by former employees, it can't hurt to look good on diversity. And it really can hurt not to. Large public companies, like politicians, are vulnerable to pressure from groups such as the Rainbow Coalition, which keep a sharp eye out for anything looking like discrimination and are ready to mobilize in response. As Herring recalls, for "one of my one-time clients, a retail company, blacks accounted for 18 percent of their bottom line; if a Jesse Jackson or someone like him called a boycott, if he knocked as much as 3 percent off the bottom line, their stock would plummet. They don't want that to happen, and they're going to do everything they can to look like a good corporate citizen on that issue." Roger Clegg, of the anti-affirmative action Center for Equal Opportunity, sees it in a more lurid light, saying, "It's like paying money to the mob."
It goes deeper than that, however. Companies have made an investment in affirmative action. They've hired diversity consultants, set hiring goals based on race and ethnicity, subjected their employees to racial-sensitivity training. To have the concept invalidated would in turn invalidate all of those investments -- and perhaps open them up to reverse-discrimination lawsuits from employees. As the Fortune 500 brief puts it, "These extensive efforts are part of the very fabric of amici's cultures." Affirmative action has become as much the status quo as the man in the gray flannel suit once was.
A similar rationale suggests itself in the brief submitted by the former military officers. It presents affirmative action in the military service academies as a matter of combat readiness. Affirmative action is hardly necessary to fill the ranks with minorities, but an increasingly diverse military demands matching commanding officers. That lesson, as the brief tells it, was learned in Vietnam, when the lack of black officers and "the discrimination perceived to be its cause led to low morale and heightened racial tension . . . As that war continued, the armed forces suffered increased racial polarization, pervasive disciplinary problems, and racially motivated incidents in Vietnam and on posts around the world." Creating a diverse officer corps through aggressive affirmative action was and remains a way to blunt racial tensions and maintain morale.
The strange thing about this argument, though, is that it's the same one that was used to justify keeping blacks and white soldiers segregated until 1950. Then, too, the measure was a means of preserving morale and blunting racial tensions, a capitulation to the preconceptions of the enlisted man: The troops won't be comfortable with it, it will sap their fighting spirit, we therefore shouldn't do it. It's the same argument that motivates today's "don't ask, don't tell" policy toward gays in the military.
So there is a fundamentally conservative tenor to the pro-affirmative action arguments of the establishment: Fortune 500 companies are concerned about ensuring continued returns on an investment while the military wants to maintain discipline in the ranks. This should come as no surprise -- after all, these are fundamentally conservative institutions. Moreover, the conservatism of these arguments should encourage, not disappoint, supporters of affirmative action. Appeals for racial justice are, of course, more likely to succeed when yoked to the power of self-interest.
But perhaps what's most striking about the corporate brief is how little daylight there is between it and the Bush brief. The former lauds diversity but avers that "Amici are not in a position to evaluate the propriety or efficacy of any particular admissions program." The latter, meanwhile, attacks the particularities of the University of Michigan's admissions policy while insisting that "measures that ensure diversity, accessibility, and opportunity are important components of government's responsibility to its citizens." It is, in other words, a difference of emphasis more than substance -- and, perhaps more than anything else, shows the narrowness of the middle ground where both sides of the establishment have uneasily staked out their positions on affirmative action.
Drake Bennett is a Prospect writing fellow.
