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On the Supreme Court, College Admissions and the Future of Workplace Diversity
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On the Supreme Court, College Admissions and the Future of Workplace Diversity

With Stacy Hawkins, Professor at Rutgers Law | Interviewed by Matt Crossman

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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about what the ruling in the Harvard-UNC Supreme Court case means for workplace diversity. Our guest is Stacy Hawkins, a professor at Rutgers who speaks and writes about diversity, hiring and college admissions.

She walks us through key concepts to understand the differences and similarities between race-conscious college admissions and workplace diversity hiring efforts, discusses the search for a hiring case similar to the admissions case and lays out her passion for reviving the role-model theory as a strategy to increase the diversity of workplaces.

Hawkins also explains how she transitioned from a career in private practice to being a professor, commentator and thought leader and offers practical advice for anyone hoping to make a career change. The episode transcript and supplemental materials are available below.

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Interview References:

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TRANSCRIPT

I. THE COLLEGE ADMISSIONS SUPREME COURT CASE THAT CAPTIVATED EMPLOYMENT ATTORNEYS

Matt Crossman, Host: Everyone from scholars like yourself to employment attorneys to hiring and DEI executives eagerly anticipated the UNC-Harvard Supreme Court case. The decision finally came down over the summer. What was that case about and what did the Supreme Court say?

Stacy Hawkins: The case was about Harvard and the University of North Carolina at Chapel Hill, and the way in which they conduct their admissions programs. They, like many other selective colleges in the United States, have long considered race as one of many of the factors that they consider about the applicants who apply for admission to their universities.

And since 2003, the Supreme Court has endorsed the use of race as one of many factors in the college admissions process. And so consistent with that 2003 precedent, both Harvard and UNC had been continuing to use race in their admissions processes. And this case was filed by an activist who has been trying to get the Supreme Court to reverse that 2003 decision for some time now.

And he was finally successful.

MC: And what does that have to do with employment law?

SH: There are two reasons why employers have always closely watched these cases going back to the 2003 case and up through the most recent decision by the Supreme Court. And that’s first because obviously the graduates that colleges and universities produce are the people that these employers hire. And so they’re concerned about their ability to hire a diverse workforce in the future. Because obviously if colleges and universities are not admitting and graduating diverse student bodies, then employers, especially in the professional sector, are not going to be able to hire diverse workers.

And then second, because employers are committed to diversity in their workplaces, they have closely watched what the Supreme Court has said about diversity in the higher education admissions context, because it is one of the few contexts in which the Supreme Court has ever made any decision about the interest in diversity itself.

The Supreme Court has never had occasion to consider diversity efforts in the employment context. Employers take it that whatever the Supreme Court has said in the higher education context, it might have some transferability to the work that they’re doing in the employment context.

II. COMMON ENDS, DIFFERENT MEANS AND HIRING FOR DIVERSITY

MC:
I like that word you used, transferability, and that employers should watch that. A couple years ago you wrote an article in the ABA Journal of Labor and Employment with the headline “What the Supreme Court’s Diversity Doctrine Means for Workplace Diversity Efforts.”

In that article, you point out three issues that are important to understand the similarities and differences between race-conscious college admissions plans and workplace diversity efforts. I want to take them one at a time. The first one is common ends. What are the common ends of the two efforts?

SH: This is something that, I like to always point out, is kind of my own personal mission to distinguish between diversity and affirmative action. Oftentimes people will talk about the Supreme Court striking down “affirmative action” in higher education.

But affirmative action, as it has been understood and practiced in this country, is really a civil rights-founded idea about remedying past discrimination in this country. And it is efforts that are taken affirmatively on behalf of women and people of color to try to remedy past discrimination.

It turns out that in 2003, when the Supreme Court endorsed colleges and universities considering race in their admissions plans, they did not endorse that interest on behalf of colleges and universities in order to remedy past discrimination. They acknowledged only the more prospective, the more instrumental, the more functional interest in student body diversity.

And some of the things that the court talked about in that 2003 case are that student body diversity actually enriches the learning environment. So there are these pedagogical benefits to diversity. And in the workplace there are similar benefits. Scott Page, at the University of Michigan, has done a lot of work about the kind of advantage diversity brings to innovation, to problem solving, to creativity.

I call it either the pedagogical in the academic context or the kind of epistemic benefits—the knowledge benefits—that come when you have different people coming together to work and solve problems and create new things. So that’s one common end. 

And then there are other functional benefits. One of the things that the Supreme Court said in that 2003 case is that part of what having a diverse student body does is that it breaks down racial stereotypes. For employers, this is very important because employers are increasingly operating in a global context. Even in our national context, we’re increasingly a diverse and pluralistic nation.

These companies are increasingly serving diverse markets, and they need employees who are culturally competent. And so we want to break down stereotypes. We want to increase cultural competence. That’s another functional benefit that you get when you have people who are in a diverse context. And then finally, there are social justice and equality goals that are similar. 

One of the things that the Supreme Court said is that public universities have an obligation to serve the citizenry. And if that citizenry is diverse, then they need to represent that diverse citizenry. They need to be visibly open as the court said, to people of all races and ethnicities.

Employers have had the same kind of commitments. Corporate social responsibility, social justice, all of these things, have long existed, but of course in the summer of 2020, after the murder of George Floyd and the resurgence of the Black Lives Matter movement, there was a redoubling of the social justice commitment on behalf of employers. And so they also share this idea that we have an obligation to the communities in which we are situated to make sure that we reflect those communities, that we serve those communities well.

MC: Common ends was No. 1. No. 2 of the three is different means. What did you mean by that?

SH: Between 2003 and 2023 the Supreme Court endorsed that colleges and universities may pursue that goal of diversity in explicitly racialized ways. When colleges and universities are admitting a class, they have to make hundreds, oftentimes thousands of decisions from tens of thousands of applicants. It’s a volume business, and so they need to have efficient sorting mechanisms, and so they often use race as a proxy for other things, and the court endorsed that use.

In the employment context, I like to call it race-conscious without the use of direct considerations of race. Employers are mindful of the desire to have diversity, but when they make decisions about who to hire, they don’t do so on the basis of race explicitly.

Even an employer who is hiring thousands of people in a single year, they’re not going to hire them at a single time.

These are discrete decisions that get made by discrete decision makers, across a wide range of contexts. So they are very subjective, they’re very individualized and they never—at least they need not—have direct considerations of race. You don’t need to use race as a proxy for something else when you are interviewing and meeting with candidates directly, and you can make selection decisions that are really based on whatever skills, experience or other criteria you are selecting for.

MC: Common ends is number one, different means is number two. And the third example you use is hiring for diversity versus admitting a diverse student body. How are they the same and how are they different?

SH: I will start with admitting a diverse student body. When colleges and universities are deciding which students to admit, they are really looking to compose an entire entering class. And in doing so, they have in mind the kind of profile of that class that they would like to construct. Among the many things that they’re looking at are racial and ethnic diversity.

They will look at the race of an applicant, and the race of the applicant is one of the explicit considerations that colleges and universities had been allowed to consider in making admissions decisions. 

When employers hire, No. 1, they’re not amassing a huge class whose profile they’re trying to intentionally construct. They’re hiring for a single job, and they are not going to simply look at an application or a resume and make a determination.

They are going to bring that person in for an interview, interact with them, sometimes one-on-one, sometimes with several people. In the employment context we call this fit. Is this person the right fit for this job for our company? Those are highly subjective decisions that get made at an interpersonal level, unlike the kind of arm's length decisions that get made in the aggregate about who gets admitted to a university.

MC: You mentioned fit. I’ve been a sports writer for a long time. If you’re hiring someone to cover baseball and there’s a lot of Hispanic players on the team, it could be a good characteristic for that writer covering that team to have a background that fits the players that he or she is covering. Can that be a consideration? Can that be counted as fit?

SH: Absolutely. And I use a similar example in the ABA Law Journal piece. The example that I use in the article is that we are hiring someone who is going to oversee operations in Latin America. That person should probably not only speak Spanish, that person should have some familiarity with Latin American culture. 

Now, we might have some idea that a person of Hispanic origin might be the most likely to both speak Spanish and know the Latin American culture. That doesn’t mean we only consider Hispanic applicants. But Hispanic applicants, if those are our criteria, probably have an advantage. The person we select is going to be someone who we know for a fact fits because we’ve interviewed them and they’ve demonstrated their competence in speaking Spanish and being competent with Latin American culture. And so we are directly selecting for those skills and experiences rather than using their race as a proxy for that.

[If you’d like to read this transcript on the web, click here.]

III. BIG CASES AND THE REVIVING THE ROLE MODEL THEORY  

MC: Are there any cases that you’re watching that might be the next major decision in the employment realm?

SH: Not a particular case, although these cases do get litigated. People are predicting, for instance, that the activist who has financed the litigation in the higher education context might be looking to finance some litigation in the employment context.

We have seen the Attorney General’s letters that went out to the Fortune 100 companies saying, “Look, you should take note that because the Supreme Court said colleges and universities can’t do this, you can’t do it either.” So I do think that there’s an appetite to litigate this issue in the employment context, but I’m not aware of a case that is ripe for the Supreme Court to consider it.

MC: If I am an HR director, or I work in my company’s DEI department, what should I know?

SH: Hopefully what you have been doing is complying with the existing prohibitions on explicit uses of race under Title VII because it turns out that employers have always been more restricted in their ability to use direct considerations of race in making employment decisions than colleges and universities have been.

Employers were always forbidden from making direct considerations of race in almost all instances. There was a very narrow opportunity for affirmative action plans, but again, almost never justifiable and even less likely to be endorsed if it was litigated in court.

So hopefully HR professionals and diversity professionals have long been aware that they should be doing race consciousness and not be engaged in explicit racial preferences. And if that’s what they’re doing, then there is no cause for concern.

MC: I read a story as I was preparing these questions about a black actor who portrays a teacher. He said he had never had a black teacher in all of his education, and that’s in part what drew him to the role. I would bet most people would say that broadly speaking, hiring not just black teachers, but a diverse range of teachers would be a good thing.

Narrowly speaking, as you just said, hiring a person based strictly on their race and therefore not hiring someone else because of theirs is pretty clearly forbidden. My question is, do I have that right? In a legal sense and a broader cultural sense, is there a way to achieve both of those goals—to have an appropriately diverse workforce that isn’t based on explicit numbers?

SH: Yes. That is the working presumption that you cannot use direct considerations of race in hiring. It’s so funny that you asked that question because I am actually working on a paper right now that has a working title about reviving the role-model theory. There are reasons to think we have a lot more empirical evidence about the critical importance of role models in terms of influencing what children will become. 

There’s a saying that gets repeated often on social media: “You cannot be what you cannot see.” We really do need to figure out ways to address this issue of representation, especially in our schools, but also in other professions, in other visible positions of power, because it matters for the messages that we send as a society to our young people about what options are available for them to pursue for themselves.

I’m working on that. I’m hoping to publish this paper that says we ought to rethink that. We ought to think anew because quite frankly, the court rejected that theory really for a want of evidence. Not because they said that it’s not sufficiently compelling, but we just don’t have the information in front of us to be able to justify that.

Since then we’ve gotten a lot of data about it. For instance, one of the things that we know is that black students who have at least one black teacher are far more likely to go on to college than those who don’t. They’re much less likely to be subject to discipline. They’re much more likely to be referred for advanced placement and other accelerated classes. These things really do matter, and I think that we should find a way to incorporate that understanding of the importance of representation into our doctrine.

MC: You used a couple of phrases there that I’m going to ask about. “Empirical evidence” was one of them, and “we’ve got a lot of data about it.” When I read the Supreme Court decision, it appeared to me that the court was saying, “you just can’t prove what you’re saying about the empirical evidence of the benefits of diversity, and that if you can, we’ll think about it.”

SH: I think that’s definitely one of the things the court said, in two respects. First, around the diversity interest, in addition to saying that colleges and universities can no longer use race explicitly, one of the things that the court altered fundamentally about the prevailing law from that 2003 case is that the court had long accepted the interest in diversity itself.

Colleges and universities had articulated that interest, and identified all of the reasons why amassing a diverse student body was important, and the Supreme Court said, “We believe you.” Granted, the Supreme Court had used a very deferential standard when they did that, and one of the things that the court said in this most recent case involving Harvard and UNC is that we’re not going to use that very deferential standard anymore.

They instead said we’re going to require you to actually prove your claims more robustly. And so I think that is going to be incumbent upon colleges and universities and also employers to make sure that they are demonstrating that they can substantiate their claims about why diversity is important, but there is no lack of that evidence available to them.

We would be well served to promote that information and data more broadly because I think it is really something that the public could benefit from knowing more about.

IV. THE WINDING ROAD TO BECOMING A THOUGHT LEADER

MC: Now I want to pivot and ask you professional development questions. You’ve worked in a variety of different capacities in the legal world. You’ve been in private practice, and you’re a scholar now. Walk me through that journey. When you were in law school, did you intend to become a scholar?

SH: Not at all. I had no intentions of becoming a legal scholar when I was in law school. I was very committed to going out into the world and becoming a lawyer, doing good work on behalf of the people. That’s not the turn my career took it all. 

In private law practice, I did management side, corporate defense work in labor and employment. In the context of that work, I discovered diversity. At that time—this was in the late 1990s, early 2000s—diversity was really surging. There was a lot of development around corporate diversity practices at that time.

It was a cottage industry that was burgeoning, if you will. And so I was representing clients in practice, and I thought there is so much going on here that I would really like to be thoughtful about and I would like to have some sort of impact on. And so I decided really what I want to do is I want to be a thought leader around diversity.

And my practice did not lend itself to allowing me to be the kind of thought leader I wanted to be when I had to represent clients. And so when I thought, what could I do to really leverage my skill and to do the things that I wanted to do? That’s what legal academics and quite frankly, all academics do—we are knowledge producers, we are thought leaders, and that’s why I became a legal academic.

MC: What happened that you discovered it? Did a case come before you, or did something happen in the news?

SH: So it’s not a particular case. It is the sum total of all of the things that I was doing. And quite frankly at the time, because this was so new, I was doing diversity work at the time that Chief Diversity Officers almost didn’t exist. They were just coming into existence and the vast majority of companies had no internal infrastructure.

That’s why they hired us. We were their outside diversity management team. They did not have internal capacity, and a lot of what I heard everyone saying at the time was that there was no law governing diversity because again, we weren’t doing affirmative action. That’s not what we were doing.

We were doing this new thing called diversity, and a lot of what people were saying was, “Oh, don’t worry about whether or not it’s legally defensible because there’s no law governing diversity.” And I thought to myself, “Surely that can’t be right. I do not think that’s probably the way that’s going to work.”

And I thought someone should be thinking about, when this does come before the court, how is the court likely to treat this? What laws govern this? And how do those laws restrain what’s possible in this space? And so I started thinking about that, and that’s what I’ve done with my my academic career.

MC: I want you to imagine there’s a young attorney who has reached a crossroads like you did, and she’s sitting in a corporate office thinking, “I need to go do something different.” How should they do it?

SH: Whenever I’m going to make a career transition, I do informational interviews with people in the field that I would like to transition into. Every career move that I’ve ever made, I found someone who’s doing the job that I would like to do, or at least that I think that I would like to do, and I talk to them and I ask them about it and I get information about what the real day-to-day life of a person in that role would be like, and that’s always been extremely useful for me. People are actually quite generous with their time and with their advice when you reach out to them. So I would always counsel anyone who’s looking to make a career move to do some informational interviews.

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This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on July 31, 2023.

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