Activist Behind Supreme Court Affirmative Action Cases Is Now Suing Law Firms: says diversity fellowships discriminate against straight white men

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Activist Behind Supreme Court Affirmative Action Cases Is Now Suing Law Firms

Firms that offer some fellowships for diverse candidates are accused of racial discrimination against straight, white men.

www.wsj.com

Activist Behind Supreme Court Affirmative Action Cases Is Now Suing Law Firms​

Ed Blum’s organization accuses firms offering fellowships for diverse candidates of racial discrimination against straight, white men​

The conservative advocate who engineered the lawsuit behind the U.S. Supreme Court’s June decision to end race-conscious affirmative action in college admissions on Tuesday sued two law firms that offer fellowships for diverse candidates.

The lawsuits, filed by Edward Blum’s two-year-old anti-affirmative-action organization, American Alliance for Equal Rights, accuse the law firms of unlawful racial discrimination against white candidates. They ask the courts to remove race from consideration when selecting fellows. The law firms have offices in Texas and Florida. The suits are filed in federal courts in both states.

The lawsuits target the international law firms Perkins Coie and Morrison & Foerster, but fellowships for diverse candidates are common across the legal industry.

The suit filed in Texas is against Perkins Coie and alleges the firm has been “racially discriminating against future lawyers for decades” by limiting some fellowship positions to applicants who are “‘students of color,’ ‘students who identify as LGBTQ+,’ or ‘students with disabilities.’” The fellowships pay tens of thousands of dollars to first- and second-year law students and provide a pool of prospective employees to the firm where associate salaries can start around $190,000 a year, the suit says.

Perkins Coie couldn’t immediately be reached for comment. The firm touts its diversity on its website.

“For decades, we have been intentional and consistent in our efforts to increase the diversity of our workforce and to advance the values of diversity and inclusion in the legal profession,” the firm says.

The suit against Morrison & Foerster alleges that the firm’s Keith Wetmore Fellowship for Excellence, Diversity, and Inclusion only considers “African American/Black, Latinx, Native Americans/Native Alaskans, and/or members of the LGBTQ+ community.”


Representatives at Morrison & Foerster couldn’t be reached for comment. The firm’s Wetmore program is 10 years old and has awarded 136 fellowships, according to the firm’s website, which says the fellowship is for “first-year law students who are members of historically underrepresented groups in the legal industry.” Associate positions at the firm start at $215,000 a year, according to the suit. Hires are drawn from the fellowship programs.

The lawsuits follow the Supreme Court decision this summer involving Harvard College and the University of North Carolina at Chapel Hill that overturned nearly 50 years of race-conscious affirmative action at colleges and universities.

Blum said the American Alliance for Equal Rights had a valid basis for suing the firms because its members include nondisabled, straight white men in law schools in Texas and Florida who are ineligible for the fellowships.

Earlier this month, the American Alliance for Equal Rights sued an Atlanta-based venture-capital firm fund that supports Black women who own small businesses. The suit accused the firm of unlawful racial discrimination.

Supreme Court Bans Affirmative Action: What It Means for College Admissions

The Supreme Court has banned colleges from using race as admission criteria, essentially ending affirmative action. California did the same 25 years ago. WSJ explains how what happened then can offer a road map for what could happen now. / Photo Illustration: Madeline Marshall
The Supreme Court ruling has prompted a wide reconsideration of diversity efforts and has become a political lightning rod. Dozens of corporate law firms and major employers have received letters from Republican officials warning them to adhere to laws prohibiting racial quotas and preferences in employment and contracting decisions.

In June, U.S. Equal Opportunity Chair Charlotte A. Burrows said the Supreme Court decision banning racial preferences in college admission doesn’t address employer efforts to foster diverse and inclusive workforces.

“It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace,” Burrows wrote.

Professor Vinay Harpalani of the University of New Mexico School of Law said he believed the case would prevail if it reached the Supreme Court.

“The court is really hostile to any use of race, any use of racial classification,” he said. “They basically said racial categories are just stereotyping so in that context, I would be worried if I was the corporations.”

But Harpalani also sees a work around: firms could open the fellowships up to students with different sorts of challenges not necessarily tied to race. The Supreme Court left some wiggle room for colleges and universities to do that. Now schools are tailoring essay questions to elicit responses that generate stories about identity, including race.

Law firms have long struggled with diversity, lagging particularly in the highest ranks where white men remain dominant in the highest paying and most powerful partner positions.

 

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Part 2:

Women, people of color, and women of color have made incremental progress in representation for associate-level positions at law firms, according to the most recent data from the National Association of Law Placement. For the last decade, representation for lawyers of color hired for first-year associate positions increased from 20% to 28%. Women represent half of the lower-level positions.

The increase in representation of associates of color can be attributed to an increased representation of Asian associates, which grew steadily since 2010. The number of Black associates has remained low, hovering around 5%.

In the partnership ranks, women and lawyers of color remain underrepresented, the data show. In 2021, 4% of all partners were women of color, and 2.3% were Black.

David Lopez, a law professor at Rutgers University and a former EEOC general counsel, said law firms being targeted is ironic, given the “glacial pace” the industry has made to increase diversity.

“The fear is whatever marginal progress has been made will be rolled back with these lawsuits,” he said. “Some law firms have scrutinized whether their recruiting and hiring practices lead to an inclusive environment, and now they’re getting sued. There’s a lot to unpack there.”

The suits filed on Tuesday accuse the law firms of violating Section 1981 of the Civil Rights Act of 1866, which bars racial bias in private contracts.

Blum said he hopes his organization will generate at least two more Supreme Court cases over the next five years that will shore up the legal limits of how race and ethnicity is used in employment, contracting and internships.

“We believe that an individual’s race and ethnicity should not be used to help that individual or harm that individual in his life’s endeavors,” Blum said.

 

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@88m3 @ADevilYouKhow @wire28 @dtownreppin214 @Leasy @Neo The Resurrected ONE
@dza @wire28 @BigMoneyGrip @Dameon Farrow @re'up @Blackfyre @NY's #1 Draft Pick @Skyfall @2Quik4UHoes

 

[LongLiveDET]

Boo hoo straight wyt men got it so hard FOH

Why do they care so much about the scraps we get in corporate?

 

[KingsnBucs1987]

Old white guy doing old white guy shyt, even after being given a head start.

 

[Arithmetic]

It's not enough that we already face the most obstacles. They want to keep us firmly at the bottom.

 

[keond]

Old white guy doing old white guy shyt, even after being given a head start.

The funny part is that he is a Joo who said being discriminated by "anti semites" shaped his views and made him want to fight inequality. My question is WHO was discriminating against him because it damn sure wasn't black folks especially since he grew up in the 60s

 

[☑︎#VoteDemocrat]

#BothSides

 

[Tair]

Got nothing better to do in his lackluster life but try and hurt Black folk.

 

[☑︎#VoteDemocrat]

This is why you can't allow republicans to win

 

[ajnapoleon]

Boo hoo straight wyt men got it so hard FOH

Why do they care so much about the scraps we get in corporate?

Remember Kanye said the white man is the most vilified on earth


But we still wanna say he a “freedom fighter and free thinker”

 

[Neuromancer]

Snowflakes.

 

[☑︎#VoteDemocrat]

 

[☑︎#VoteDemocrat]

Is Edward Blum Done Suing Law Firms? | The American Lawyer

A profession struggling for more equitable representation confronts a legal activist who wants law firms to be colorblind.

www.law.com

Is Edward Blum Done Suing Law Firms?
A profession struggling for more equitable representation confronts a legal activist who wants law firms to be colorblind.

After a U.S. Supreme Court win that ended affirmative action in college admissions, Edward Blum began targeting law firms in August.
Several law firms responded by canceling or modifying their diversity fellowships, opening them to all applicants.
Some law firm diversity professionals said Blum's skepticism of DEI is due to a misunderstanding of how firms go about it.
Edward Blum, the conservative legal activist who this year helped dismantle affirmative action in college admissions and prompted law firms to open diversity fellowships to all applicants, may not be done suing law firms after all.

After Blum dropped a recent lawsuit against Winston & Strawn, Bloomberg Law reported Blum said he was done suing law firms. Blum meant he was done for now. “If we learn of a law firm that has a policy similar to the ones we sued and they have not changed it, and a plaintiff wants to apply for that position who is disqualified because of their race, we will file a lawsuit against that law firm,” Blum said in a recent interview with The American Lawyer.

Data from NALP, the American Bar Association and the American Lawyer indicate that the legal profession does not reflect American society in terms of who ends up becoming a lawyer, with some races, ethnicities, gender identities and sexual orientations tending to have better luck than others. That systemic prejudices are to blame, and that the profession’s leading law firms ought to break down barriers that enforce them, is a broadly held opinion in Big Law today.

It is not the opinion of Blum, however. He was already instrumental in getting part of the 1965 Voting Rights Act overturned and ended affirmative action in college admissions through eight trips to the U.S. Supreme Court by the time he filed complaints against Perkins Coie and Morrison & Foerster in August.

The affirmative action case, Students for Fair Admissions v. Harvard, provided what Blum characterized as a new judicial doctrine on the influence of “racial preferences” at law firms and in other arenas such as higher education, public education and voting.

“If that is forbidden in higher education then I think most law firms have recognized that other entities outside of higher education that use racial classifications and preferences to achieve diversity are suspect,” Blum said. “That’s the whole ball of energy behind what has happened with the law firms.”

He filed a third complaint against Winston in October, with each lawsuit alleging discrimination against straight white men who would have applied for minority fellowships but for the fellowship’s preference toward minorities.

In statements to the media and letters to colleges that used affirmative action, Blum has stated that societal participation is a series of zero-sum games, where any opportunity specifically allocated to people from underrepresented groups is an opportunity taken away from the majority.

Asked whether he cared about the lack of diversity in the legal profession, Blum responded that civil rights laws do not accommodate attempts to achieve racial proportionality. “Policies that aim to reach racial proportionality that reflects the overall racial makeup of the nation have always been illegal,” he said.

Blum got what he wanted out of the lawsuits. In October, he dropped his suit against Perkins after the firm canceled a diversity fellowship that sought applicants from underrepresented groups and replaced it with a race-neutral one. The same month, he dropped his suit against Morrison & Foerster after the firm agreed to not use membership in a historically underrepresented group in its application criteria. And in December, he dropped the Winston lawsuit after the firm offered the same remedy.

Blum and his nonprofit, the American Alliance for Equal Rights (AAER), also sent letters to Adams and Reese, Hunton Andrews Kurth, Fox Rothschild and Susman Godfrey threatening litigation if the firms didn’t make similar changes. Adams and Reese canceled its minority fellowship after receiving the letter.

Fox Rothschild updated its criteria to state its fellowship would be awarded on a variety of factors including “commitment to diversity and inclusion efforts in the legal community.” In an October response letter, Hunton said it was unable to answer Blum’s questions about its 1L Diversity Clerkship but might make changes “in response to legal considerations or otherwise.”

Susman recently increased the size of its 1L Diversity Fellowship and the size of its Susman Godfrey Prize, a scholarship for law students of color. However, the firm also opened its 1L Diversity Fellowship to all first-years who experienced hardships or disadvantages and ended the summer clerkship formerly attached to the Susman Godfrey Prize, adding that it would provide mentorship to winners.

“All of them made substantial changes to their programs which were sufficient for AAER to suspend any plans to bring legal actions,” Blum said.

Blum’s career in legal activism has relied on finding the right plaintiffs. If another person comes forward who feels disadvantaged by a policy that Blum’s team finds actionable, the litigation will continue, he said.

Beyond Minority Fellowships

Blum’s lawsuits and legal threats prompted a broad review of law firms’ DEI efforts, in part because of fears that Blum’s skepticism of diversity programs—and financial support from wealthy conservative families and dark money groups—would lead him to attack other areas of DEI.

Indeed, Blum characterized DEI efforts such as training on white privilege as “polarizing” and “disunifying,” although not illegal. But other areas of law firm DEI could be actionable in certain circumstances, he added. “It becomes fuzzy when that policy is open to everyone but the goal is to create a racially diverse institution or employee pool, how that’s done has to be analyzed on a case-by-case basis,” Blum told The American Lawyer. “Using racial classifications and preferences exclusively will virtually always be actionable.”

Some law firm diversity professionals said Blum’s skepticism of DEI is due to a misunderstanding of how firms go about it. Diversity is about far more than race and ethnicity, several chief diversity officers said, underscoring the fact that a straight white man could be afforded opportunities allocated for diverse attorneys due disability status or veteran status.

Blum also signaled that he may sue law firms that use new criteria in diversity fellowship applications that act as a proxy for race, something he accused Winston & Strawn of doing in his complaint against the firm.

In an October response letter, Winston Chicago managing partner Cardelle Spangler, a labor and employment lawyer, fired back at Blum. “Note that your implication that the terms ‘disadvantaged’ and ‘historically underrepresented’ necessarily refer to race is baseless,” Spangler said.

 

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Part 2:


“Just alleging it doesn’t make it true,” added Reed Smith labor and employment chair Tyree Jones about Blum’s proxy allegations. “There are white men who have suffered socioeconomic disadvantage.”

And yet, some opportunities in Big Law are zero sum—there are only so many diversity fellowship spots and scholarship opportunities, after all. With Blum and conservative legislators emboldened by the U.S. Supreme Court’s decision to strike down affirmative action in college admissions this June in Students for Fair Admissions—which Blum said highlighted the “unconstitutionality” of seeking racial balancing in corporations and law firms, too—diversity leaders at law firms know that future DEI initiatives may face similar scrutiny.

“While I’d like to think that the tweaking of the language will satisfy the people who are complaining about it, I think that their issue is reflective of a broader concern among certain people that these opportunities are zero sum, and everything that is given to one person is something that is being taken away from somebody else,” said Shelley Smith, the CDO at New Jersey-based Archer & Greiner.

More accurately, Smith said, DEI efforts have increased the size of the playing field, with more people becoming qualified for opportunities. “Demographic groups of people who have historically only had to compete with each other now have to compete with a broader group of people and that makes every opportunity more competitive,” Smith said.

On whether his litigants—straight white men—were disadvantaged in society, Blum said, “Perhaps, but perhaps not.” He affirmed his belief that racially exclusionary policies should draw litigation, but was unsure on the underlying question. “Do white men have a disadvantage? Do African American men have an advantage? I don’t know and I don’t have an opinion on that,” he said.

Whatever Blum believes, his litigants feel they’ve been wronged. “The real issue the AAER raises in its lawsuits is they believe straight white males are being discriminated against,” Jones said. “They have every right to raise those claims and try to prove that in court, but that shouldn’t chill the objective of ensuring opportunity for all in a profession where the numbers still reveal that opportunity hasn’t been available to all.”

‘Harmful for All of Our Endeavors’

Most Big Law firms aren’t walking away from DEI commitments or wholly cutting programs in response to the Blum lawsuits, according to interviews with numerous law firm CDOs and DEI consultants in recent months. But the lasting impact of Blum’s 2023 litigation remains to be seen.

In a July interview with the New York Times, Blum said the SFFA decision left it up to colleges to create “fair and equitable admissions policies that do not discriminate on the basis of race.”

Asked what he thought the impact of his litigation against Big Law firms may be, Blum again emphasized the need for better recruitment. “Maybe we should recruit at Texas Tech, maybe we should recruit at Wyoming State [University of Wyoming] or the University of Maine or the South Texas College of Law,” he said. “Those schools have significantly more minorities, and those kids come from less advantaged economic backgrounds than Harvard or Stanford or Chicago. That would comport with the law.”

For Jones, the backlash has helped align lawyers and law firms behind a common goal of improving diverse attorney representation. “It really energized or reenergized law firms’ commitment to DEIB,” he said, referencing the acronym for diversity, equity, inclusion and belonging.

Already, the SFFA decision and suits against law firms have created more work for people who work to increase diversity in the profession. After the SFFA decision dropped, the New York City Bar Association began fielding calls from legal employers who had partnered with the association to offer summer internships for diverse New York City public high school students and 1L fellowships for diverse law students.

“They were writing in saying, ‘Hey, is this still legal? Can we still do this?’” said Tanya Martinez-Gallinucci, executive director of DEIB at the NYC Bar Association, adding that the programs never selected applicants on the basis of race. “That kind of misinformation is harmful for all of our endeavors.”

Speaking from her office in New York City, Martinez-Gallinucci noted that 69 years after Brown v. Board of Education, the nation’s most diverse city has the country’s most segregated public school system.

“We never achieved the goals of Brown v. Board, and the expectation that they would have fixed everything with affirmative action in 20 years is ridiculous,” she said, referring to when Justice John Roberts, in his majority opinion in the SFFA case, referenced the 2003 Grutter v. Bollinger ruling that proposed affirmative action would no longer be necessary in 25 years.

“It’s a sham, and I hope everyone can see it’s a sham,” she concluded.