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(Reuters) – Next Monday, two partners from Consovoy McCarthy, the conservative litigation boutique, will appear at the U.S. Supreme Court on behalf of a group called Students for Fair Admissions. The Consovoy lawyers will argue that Harvard University and the University of North Carolina must end their consideration of race as a factor in college admissions.
The Harvard and UNC cases, which were sparked by anti-affirmative action activist Edward Blum, are widely regarded as an opportunity for the Supreme Court’s conservative members to put an end to programs intended to boost diversity on college campuses.
Consovoy McCarthy already has its next targets in sight.
Last month, the law firm filed two lawsuits on behalf of a new nonprofit, Do No Harm, which says that its mission is to “protect patients and physicians from woke healthcare [and] the racially divisive ideology threatening the quality of care in America.” (Blum is a member of the group’s board of directors, according to New York State records for charitable organizations.)
Both of Do No Harm’s lawsuits – one against pharmaceutical company Pfizer Inc and the other against healthcare policy nonprofit Project Hope and its journal Health Affairs – allege that fellowship programs for Black, Latino, Native American and other minority candidates discriminate against white and Asian applicants, in violation of the Civil Rights Act and several other state and federal laws.
In both cases, Consovoy McCarthy has asserted that unidentified members of Do No Harm were injured because they were not eligible to apply for the fellowships. The lawsuits are seeking preliminary injunctions to bar Pfizer and Project Hope from proceeding with their application processes.
Project Hope’s lawyers at Morgan, Lewis & Bockius have told U.S. District Judge Randolph Moss of Washington, D.C., that the group’s fellowship program does not actually exclude white candidates, who can decline to indicate their race on the application. After a hearing on Tuesday, Moss asked Project Hope and Health Affairs to file a status report indicating whether they would be willing to reopen the now-closed application process for next year’s fellowship to allow a Do No Harm member to apply.
But it’s the Pfizer case that seems to me to be a more important harbinger of the challenges companies may face as they try to encourage diversity and inclusion in the workplace. After all, for those who consider any kind of race-based consideration to be racial discrimination, it’s a logical progression from ending affirmative action in college admissions to blocking corporate attempts to promote diversity.
That puts big companies in a squeeze. They’re under pressure from shareholders, institutional investors and, often, their own employees to assure that their workforces are diverse from bottom to top. And, at least according to Pfizer’s lawyers from Paul, Weiss, Rifkind, Wharton & Garrison, longstanding Supreme Court precedent allows them to act with that goal in mind.
Pfizer told U.S. District Judge Jennifer Rochon of Manhattan, in a brief opposing Do No Harm’s bid for a preliminary injunction, that the law permits the use of racial selection criteria when it serves a non-discriminatory goal, such as assuring workplace opportunities for minority employees.
Pfizer’s Paul Weiss lawyers, including former U.S. Attorney General Loretta Lynch, referred my query to a Pfizer spokesperson who declined to comment. Thomas McCarthy, Cameron Norris and Frank Chang of Consovoy McCarthy did not respond to my email query.
Pfizer’s brief argued that its Breakthrough Fellowship program is tailored to accomplish exactly what Congress and the Supreme Court have encouraged, offering a “a legitimate, non-discriminatory basis for the use of racial selection criterion” in order to build “a workforce that represents the diversity of the communities Pfizer serves,” and to reverse “the effects of historical discrimination in the workplace.”
The company said it designed its fellowship program to address its “difficulties in recruiting and retaining” minority college graduates and masters’ degree holders. The program calls for 20 college juniors to be selected for a nine-year track to Pfizer leadership. The fellowship begins with a summer internship after junior year and continues through two years of post-college work as a Pfizer analyst, company-sponsored graduate studies and the promise of a managerial job after completion of a graduate degree.
Thousands of highly accomplished candidates have submitted applications for fellowships, Pfizer’s brief said. The 40 fellows selected in the first two years are academic stars who have also conducted groundbreaking research projects, worked in community health care clinics and led vaccination campaigns — just the kind of future leaders Pfizer hoped to attract.
The company emphasized that employees and job candidates who are not eligible for Breakthrough Fellowships are not disadvantaged by the program. Pfizer offers other opportunities for paid internships, early-career development and tuition reimbursement for graduate school. “No white or Asian American person has lost their job or a promotion because of the fellowship,” the company’s brief said.
Pfizer also asserted an assortment of technical defenses against Do No Harm’s request for an injunction. The company is not a health care provider or a recipient of federal funds for the Breakthrough Fellowship, the brief said, so Do No Harm has no claims under several of the federal laws cited in its complaint.
Most significantly, Pfizer said, neither the group nor the anonymous Do No Harm members who said they would have qualified for the fellowship but for their race have standing to sue. The anonymous members, according to Pfizer, have not shown they would have been selected from among the myriad stellar applicants (and cannot, in any event, establish their standing through anonymous, unsworn declarations). The group has no standing on its own, Pfizer said, because it has not alleged any injury.
Those technical arguments may end up deciding the case. But the real heart of the Pfizer brief is in the company’s concluding argument that “decades of well-settled precedent” confirm that affirmative action programs serve the public’s interest by addressing egregious racial imbalances.
One of the cases Pfizer cited, as I’m sure you’ve guessed, is the Supreme Court’s 2003 decision in Grutter v. Bollinger, which held that the University of Michigan Law School did not violate the Equal Protection Clause by considering race in admissions decisions.
That precedent, of course, will be on the line next week at the Supreme Court — thanks, in no small measure, to Do No Harm’s lawyers at Consovoy McCarthy.
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