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(Reuters) – Next Monday, two associates of Consovoy McCarthy, the conservative litigation boutique, will appear in the U.S. Supreme Court on behalf of a group called Students for Fair Admissions. 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 seen as an opportunity for conservative members of the Supreme Court to end 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 its mission is “to protect patients and doctors in woke healthcare.” [and] racially divisive ideology threatening quality of care in America.” (Blum is a member of the group’s board of directors, according to New York State Registers for Charitable Organizations.)
The two Do No Harm lawsuits — one against pharmaceutical company Pfizer Inc and the other against health policy nonprofit Project Hope and its journal Health Affairs — allege that scholarship programs for black, Latino applicants , Native Americans, and other minorities 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 claimed that unidentified Do No Harm members were harmed because they were ineligible to apply for the scholarships. The lawsuits seek preliminary injunctions to prevent Pfizer and Project Hope from continuing with their application processes.
Project Hope lawyers at Morgan, Lewis & Bockius told U.S. District Judge Randolph Moss of Washington, D.C., that the group’s scholarship program does not actually exclude white applicants, who can decline to state their race on nomination. After a hearing on Tuesday, Moss asked Project Hope and Health Affairs to file a status report on whether they would be willing to reopen the now-closed application process for next year’s fellowship to allow a member of Do No Harm to apply.
But it’s the Pfizer case that strikes me as a bigger harbinger of the challenges companies can face when trying to encourage diversity and inclusion in the workplace. After all, for those who view any type of racially based consideration as racial discrimination, it is a logical progression from ending affirmative action in college admissions to blocking attempts companies to promote diversity.
This puts large companies in difficulty. They are under pressure from shareholders, institutional investors and, often, their own employees to ensure their workforces are diverse from the bottom up. And, at least according to Pfizer lawyers Paul, Weiss, Rifkind, Wharton & Garrison, the 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 writ opposing Do No Harm’s bid for a preliminary injunction, that the law permits the use of racial screening criteria when serving a non-discriminatory objective, such as ensuring work opportunities for employees belonging to minorities. .
Pfizer attorneys Paul Weiss, including former U.S. Attorney General Loretta Lynch, referred my question 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 scholarship program is designed to accomplish exactly what Congress and the Supreme Court have encouraged, providing a “legitimate, non-discriminatory basis for using the racial selection criterion” to build “a workforce that represents the diversity of the communities served by Pfizer” and to reverse “the effects of historic discrimination in the workplace”.
The company said it designed its scholarship program to address its “challenges in recruiting and retaining” minority college graduates and master’s degree holders. The program provides for the selection of 20 college juniors for a nine-year journey to Pfizer leadership. The scholarship begins with a summer internship after the junior year and continues for two years of post-graduate work as a Pfizer analyst, company-sponsored graduate school, and the promise of management employment after obtaining a graduate degree.
Thousands of highly qualified applicants have submitted scholarship applications, Pfizer’s brief states. The 40 fellows selected in the first two years are academic stars who have also led groundbreaking research projects, worked in community health care clinics, and led vaccination campaigns — exactly the kind of future leaders Pfizer hoped to attract. .
The company stressed that employees and job applicants who are not eligible for Breakthrough scholarships are not disadvantaged by the program. Pfizer offers other opportunities for paid internships, early career development, and graduate school tuition reimbursement. “No white or Asian American person has lost their job or promotion because of the stock market,” the company said.
Pfizer also asserted an assortment of technical defenses against the Do No Harm injunction request. The company is not a healthcare provider or recipient of federal funds for the Breakthrough Fellowship, the brief states, so Do No Harm has no claims under several of the federal statutes cited in its complaint.
More importantly, Pfizer said, neither the group nor the anonymous Do No Harm members who said they would have qualified for the scholarship but for their race have standing to sue. Anonymous members, according to Pfizer, have not demonstrated that they would have been selected from the myriad of stellar applicants (and cannot, in any way, establish their quality by anonymous, unsworn statements). The group has no status per se, Pfizer said, as it has not alleged any injuries.
These technical arguments may end up deciding the case. But the real heart of Pfizer’s brief lies in the company’s final argument that “decades of well-established precedent” confirms that affirmative action programs serve the public interest by addressing gross racial imbalances. .
One of the cases cited by Pfizer, as you might have guessed, is the 2003 Supreme Court decision in Grutter v. Bollinger, who concluded that the University of Michigan Law School did not violate the Equal Protection Clause by considering race in admissions. the decisions.
That precedent, of course, will be in play next week in the Supreme Court — thanks, in large part, to Do No Harm lawyers at Consovoy McCarthy.
Pfizer, facing lawsuit, says minority scholarship program serves public interest
Lawsuit claims Pfizer scholarship program is biased against whites and Asian Americans
U.S. Supreme Court to hear challenge to race-conscious college admissions
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