I have a dream! That someday unscrupulous blood-sucking leeches of every race creed and color can practice law. Just kidding, I forgot that yesterday was Indigenous People's Day. How about every law school admit only Cherokee applicants for the 2024 academic year? Can I say that?
Law Firms Alter Diversity Programs Amid Legal Challenges
Changes by two firms come as employers look to preserve minority-opportunity efforts after Supreme Court’s affirmative-action ruling
By Erin Mulvaney, WSJ
Oct. 9, 2023 10:00 am ET
Perkins Coie revised its fellowship criteria meant to recruit underrepresented law students and expanded the applicant pool. PHOTO: ANDREW KELLY/REUTERS
Two large law firms have changed their fellowship programs meant to recruit underrepresented law students amid lawsuits led by a prominent opponent of affirmative action.
The revisions, by firms Morrison & Foerster and Perkins Coie, come as employers, investors and judges look to sort out the ramifications of the Supreme Court’s blockbuster June ruling that outlawed affirmative action in higher education. Other new cases are brewing, including an escalating battle over a venture-capital firm’s program that makes grants to Black female entrepreneurs.
In August, the law firms were sued by a group backed by Edward Blum, an anti-affirmative action activist who also organized the lawsuits that spurred the Supreme Court’s 6-3 decision, which found the use of racial preferences in college admissions violates the constitutional guarantee of equal protection.
The firms offered fellowship programs, common in the industry, designed to diversify the legal ranks by giving opportunities to law students from underrepresented backgrounds. The Blum-backed American Alliance for Equal Rights argued the firms were engaged in unlawful racial discrimination against white candidates.
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Perkins Coie’s fellowship program sought applications from “students of color,” those who “identify as LGBTQ+” and students with disabilities, according to the lawsuit. The firm, which previously vowed to fight Blum’s lawsuit, said Friday that it had revised its fellowship criteria and expanded the applicant pool because of the Supreme Court’s decision.
“We are proud of our firm’s progress and even as the legal landscape evolves, our commitment to strengthening diversity and creating a more inclusive workplace remains steadfast,” said Genhi Givings Bailey, Perkins Coie’s chief diversity and inclusion officer.
Morrison & Foerster said in a court document that it had already been in the process of implementing revised criteria for its fellowship program for the 2024 class, even before the firm was sued by Blum’s group.
“Being a leader in the effort to remove barriers and create opportunities in the legal profession has made us a target, but Morrison Foerster’s commitment is steadfast and unshakable,” said the firm’s chair, Eric McCrath.
Blum’s organization agreed Friday to dismiss its suit against the firm. By ending its “race-exclusive internship program,” the firm “admits that its earlier program was illegal and has opened it up to all law students regardless of their race and ethnicity,” Blum said. For now, he said, the Perkins Coie litigation remains active.
The legal industry has long struggled with diversity, lagging behind in the highest ranks. Women and people of color have made incremental progress in representation for associate-level positions at firms, according to recent data from the National Association for Law Placement.
Law firms and lawyers tend to be risk averse, but it remains to be seen if the lawsuits will have a chilling effect on diversity programs, said Merle Vaughn, diversity practice leader with Major, Lindsey & Africa, a legal recruiting firm.
“I don’t think they will be frightened away from who they want to hire,” Vaughn said. “How do you determine the best and the brightest? That’s what is under attack here.”
In the venture capital case, the same Blum organization sued the Fearless Fund, an Atlanta-based organization that invests in businesses run by women of color. The litigation centers on a program that provides $20,000 grants and mentorship to small businesses owned by Black women.
In a Sept. 27 ruling, a federal judge declined to halt the grant program and said the fund was exercising protected freedom of expression in supporting minority businesses. But three days later, the 11th U.S. Circuit Court of Appeals, in a 2-to-1 ruling, blocked the fund from picking new grant winners for now. The majority said the grant program likely violated a federal law that prohibits discrimination in contracts. The dissenting judge said it was a perversion of congressional intent to stop the minority grants based on an antidiscrimination law passed in the wake of the Civil War.
Other lawsuits have targeted diversity and inclusion programs at some of the nation’s largest companies. Starbucks recently won the dismissal of one such lawsuit brought by a conservative advocacy group. That case, in the state of Washington, centered on allegations that company executives and directors violated their fiduciary duty to shareholders by supporting corporate diversity policies.
If shareholders don’t like Starbucks’ diversity initiatives, “the American version of capitalism allows them to freely reallocate their capital elsewhere,” U.S. District Judge Stanley Bastian wrote.