The conservative activist behind the Supreme Court’s upending of affirmative action in college admissions is suing two corporate law firms for their fellowships aimed at bolstering diversity, an escalation of a broader campaign to dismantle diversity initiatives in the private sector.
The American Alliance for Equal Rights filed lawsuits Tuesday against Perkins Coie in U.S. District Court for the Northern District of Texas in Dallas, and against Morrison & Foerster in the Southern District of Florida in Miami. Both lawsuits allege the law firms’ diversity fellowships excluded applicants based on their race, and both demand that the programs be shut down.
Morrison & Foerster opened an office in Back Bay in Boston in 2019.
“Excluding students from these esteemed fellowships because they are the wrong race is unfair, polarizing and illegal,” said Edward Blum, president of the American Alliance for Equal Rights, the plaintiff in both lawsuits. “Law firms that have racially-exclusive programs should immediately make them available to all applicants, regardless of their race.”
A Perkins Coie representative had no immediate comment on the lawsuit. Morrison & Foerster did not immediately respond to a request for comment.
The lawsuit against Seattle-based Perkins Coie, which employs more than 1,200 lawyers in the United States and Asia, focuses on two paid fellowships for first- and second-year law students. The filing says the fellowships are limited to students of color, those who identify as LGBTQ+ and students with disabilities, and that such requirements discriminate based on race.
“So between two heterosexual, nondisabled applicants — one black and one white — the latter cannot apply based solely on his race,” the lawsuit says, which it claims is a violation of Section 1981 of the Civil Rights Act of 1866.
Morrison & Foerster, headquartered in San Francisco, has more than 1,000 attorneys and offices in the United States, Europe and Asia. AAER’s lawsuit alleges the firm’s Keith Wetmore 1L Fellowship for Excellence, Diversity and Inclusion “excludes certain applicants based on their skin color.” The fellowship, which has been running since 2012, is described in the application as being for “first-year law students who are members of an underrepresented group in the legal industry.” It includes a paid summer associate position, guidance from a team of attorney mentors and a fellowship award ($25,000 if the student completes the full summer program with Morrison & Foerster, and an additional $25,000 if the student returns the following summer and accepts a full-time position upon graduation.)
“These lucrative positions are six-figure jobs that come with five-figure stipends,” the complaint notes.
Since late June, when the Supreme Court ruled against racial consideration in college and university admissions, there’s been a rush of legal activity aimed at translating the court’s race-blind stance to the employment sphere. In July, 13 attorneys general sent a letter to the CEOs of Fortune 100 companies, warning that the overturning of affirmative action could have ramifications for corporate diversity, equity and inclusion programs. In recent months, America First Legal, the conservative nonprofit organization backed by former Trump adviser Stephen Miller, has filed complaints against Nordstrom, Activision Blizzard and Kellogg’s, alleging that their DEI policies constitute racial discrimination.
Private employers are broadly barred from using race as a deciding factor in matters of employment, and policies and practices used by companies to increase diversity and inclusion in their ranks are not at all similar to the tactics at play in college admissions, according to Stacy Hawkins, a law professor at Rutgers and a former corporate employment lawyer who specializes in diversity.
“What employers are doing now is really not affirmative action,” Hawkins said. “Quite frankly, the most risky thing an employer can do is make any employment decision explicitly on the basis of race or gender.”
Both lawsuits seek temporary restraining orders that would bar the firms from selecting fellows, as well as permanent injunctions ending the programs. The lawsuits also ask for declarations stating that the firms’ fellowship programs violate the civil rights statute.
The law industry has long struggled to diversify its workforce. Though Black people comprise about 14 percent of the U.S. population, less than 5 percent of practicing attorneys are Black, a share that has grown less than 1 percent since 2010, according to the American Bar Association. About 10 percent of practicing attorneys fall into other minority groups. Overall, the share of ethnic minorities in the legal profession has grown 6 percent since 2010, according to the association.
The Perkins Coie fellowship for first-year students was created in 1991, with the goal of developing “legal communities that accurately reflect the rich diversity of our communities,” according to the firm’s website. The firm created the second-year student fellowship program in 2020.
Morrison established its fellowship in 2012 to increase “diversity and inclusion within the firm and throughout the legal profession.”
Krissy Katzenstein, partner at law firm Baker McKenzie, said legal precedent up until now has allowed for narrow exceptions for efforts by companies “to address some sort of historical imbalance.” But these practices must be targeted, temporary and “done in a manner that doesn’t unnecessarily trample the rights of other employees.”
Even before the Supreme Court’s ruling on affirmative action, DEI practices by companies – whether they take the shape of inclusive recruiting practices, employee affinity groups or programs geared toward underrepresented groups – were facing rising opposition, both internally and externally, Katzenstein said, adding that she has already heard anecdotal reports of increased legal claims of reverse discrimination.
The flood of legal action is coming at a critical moment for corporate DEI efforts. Amid scrutiny and calls for public action in the wake of George Floyd’s murder, companies made $340 billion in commitments to racial equity efforts between May 2020 and October 2022, according to data from McKinsey. But companies have been backpedaling in the past year amid recession fears, with big companies paring back DEI roles, just as these practices become a political and legal target.
David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at New York University, said he sees the current wave of legal pushback as a direct response to the commitments companies made after George Floyd’s murder. He’s not surprised to see the political storm gathering around these issues.
“At its heart, it really is political,” Glasgow said. “The whole point of DEI is acknowledging that some groups have a harder time than others in having equal access to opportunity at work. It’s been a political fault line for decades.”
So far, legal attacks on corporate DEI policies have yet to make much of an impact. Earlier this month, a federal judge in Washington state threw out a lawsuit that argued Starbucks was violating its duty to shareholders by endeavoring to diversify its workforce. The suit targeted Starbucks’ goals for hiring people of color, awarding contracts to “diverse” suppliers and advertisers, as well as its tethering of executive pay to diversity performance.
“If the plaintiff doesn’t want to be invested in ‘woke’ corporate America, perhaps it should seek other investment opportunities rather than wasting this court’s time,” said Chief U.S. District Judge Stanley Bastian, who dismissed the suit as frivolous.
In the cases against Perkins Coie and Morrison Foerster, AAER is alleging that the firms are violating a section of the Civil Rights Act of 1866 which prohibits racial discrimination in contracts.
“The law abhors racial discrimination. The lawyers who help administer that law are supposed to abhor it too,” the complaint against Morrison & Foerster states. By operating a fellowship program specifically for law students of Black, Latinx and Indigenous descent, as well as members of the LGBTQ+ community, “Morrison has been racially discriminating against future lawyers for more than a decade.”
The legislation at play, which was passed after the Civil War to protect the rights of people freed from enslavement, is being used along with the Civil Rights Act of 1964 to claim that companies’ attempts to eradicate racial inequality qualify as racial discrimination, according to Kenneth Davis, professor of law and ethics at Fordham University.
“Federal laws that were intended to ensure equal opportunity and rights for people of color are now being used as a weapon to deny them rights,” Davis said. “It’s the height of irony.”