Edward Blum, who spearheaded litigation against racial preferences in college admissions, is now targeting law firm diversity fellowships following his victory at the Supreme Court in June. Blum’s new group, the American Alliance for Equal Rights, filed lawsuits in August against law firms Morrison & Foerster in the Southern District of Florida and Perkins Coie in the Northern District of Texas, seeking declaratory relief that considering race in their diversity fellowship programs is unlawful.

The lawsuits allege that the law firms have racially discriminated against applicants for years, gatekeeping those who may practice in the legal profession because of their race. The programs at issue reserve some summer associate positions for those belonging to “underrepresented backgrounds” of race, sexual orientation, and gender identity. In other words, straight white applicants do not qualify. The cost of excluding applicants is high. The diversity fellowship programs offer law-firm scale pay for a summer associate, pay five-figure scholarships, and usually lead to full-time law firm associate positions, which can pay over $200,000. Although Blum sued only two firms, the programs challenged in the lawsuit are commonplace in the legal industry.

The lawsuits ask the courts to apply the Court’s reading of the Equal Protection Clause and Title VI in Students for Fair Admissions, and to reaffirm that “[e]liminating racial discrimination means eliminating all of it.” But Blum’s complaint seeks to go a step further than the Court did in Students for Fair Admissions, asking that courts leave no room for considering diversity in law firm hiring. In Students for Fair Admissions, the Court did not say that pursuing racial diversity in higher education is not a compelling interest. Admissions officers may achieve diversity by giving credit to students of underrepresented racial backgrounds who demonstrate that they have overcome adversity in their open-ended application materials. The complaints allege that law firms, as employers rather than educators, must not consider race for any reason, even to achieve racial diversity. If courts adopt the position in Blum’s complaint, employers may not consider applicants’ overcoming of adversity through the lens of race in their internship programs.

Also unlike in Students for Fair Admissions, Blum asks the courts to interpret Section 1981 of the Civil Rights Act, which applies to all public and private contracts. The Court already interpreted Section 1981’s “broad terms” to bar discrimination “against, or in favor of, any race” and to “protect[] the equal right of all persons” to enter contracts “without respect to race.” Another Section 1981 decision prohibiting the consideration of race in contracting will significantly impact the legal field and beyond, barring things like race-exclusive scholarships, venture capital awards, and government contracting.

The lawsuits have reopened the debate surrounding how to remedy persisting inequalities in the legal field. As legal education costs rise, diversity fellowships allow people of color from impoverished backgrounds to pursue more prestigious out-of-state opportunities. The legal profession has few black lawyers, and diversity programs train qualified candidates from underrepresented backgrounds early in their careers. The ABA worries that this lawsuit may thwart decades of work in diversifying the legal field, and simply filing these lawsuits may be enough to set back diversity. While Perkins Coie vowed to “defend the lawsuit vigorously,” other firms may eliminate their programs or join Gibson Dunn and Morrison & Foerster in changing diversity fellowships to avoid expensive legal battles.

Despite these valid concerns, advocates of law firm diversity must overcome a direct application of Students for Fair Admissions to employers. It is not necessary to consider race directly to help disadvantaged candidates overcome financial barriers in the legal field. Students for Fair Admissions held that using race as a criterion in a zero-sum process amounts to race discrimination, and that applies to the award of law firm fellowships just as it does to college admissions. Moreover, the ABA did not suggest how to achieve racial diversity in the legal field without implicating Students for Fair Admissions’ principal concern. The direct consideration of race to achieve a pool of employees proportional to societal demographics is unconstitutional racial balancing. Lastly, the replacement for diversity fellowships must be race neutral and administered fairly to comply with the law. Facially race-neutral diversity criteria like “resilience . . . on the path of law” cannot be used as a proxy for race.

While the lawsuits are still in the early stages, Blum hopes that he can take these cases to the Supreme Court to clarify how employers may use race in employment and contracting. With Justices Alito and Thomas already interested in extending Students for Fair Admissions beyond its immediate context of college admissions, these cases may get there. 

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