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The architect of the Supreme Court victory against affirmative action at US universities is now targeting recruitment practices at the nation’s largest law firms, in a strategic ploy that could pave the way for broader challenges to corporate America’s diversity and inclusion schemes.
Edward Blum, a conservative campaigner who in June won a decades-long battle to end racially-conscious admissions at US colleges, has already sued global firms Perkins Coie and Morrison Foerster, arguing that prestigious fellowships designed to attract “historically under-represented” applicants are illegal. He told the Financial Times he was gearing up to potentially file lawsuits against similar firms “over the next few weeks”.
While other activists, including Stephen Miller, a former adviser to Donald Trump, have led efforts to sue over diversity practices at larger companies such as Kellogg’s, Starbucks and Target, the 72-year-old Blum has focused his latest efforts on the legal profession, which he sees as a crucial pillar of a push that gained momentum in recent years with the emergence of the Black Lives Matter movement.
“Over the last 10 years, especially with [the murder of] George Floyd — the tragedy of that — we saw corporations initiating racially exclusive hiring promotion policies, policies in which managers’ bonuses were tied to specific racial outcomes in their hiring and promotion,” Blum said. Outside counsel, he added, “have been blessing these corporate diversity quotas”.
If law firms “are compelled to open these internships up to all races and ethnicities, then it must follow . . . that corporations that have had nearly identical racially exclusive quota programmes in their employment endeavours must also end their practices”, Blum said.
The challenges are the latest front in a legal battle over the legitimacy of corporate diversity programmes, which has been supercharged by the Supreme Court’s decision and become a talking point among conservative hopefuls for the Republican party presidential nomination.
Blum’s new organisation, American Alliance for Equal Rights, went after Perkins Coie and Morrison Foerster because they were “crystal clear” about the criteria for their diversity fellowships. “There are dozens of other firms that have similar policies. But these were the most stark and the most revealing in public materials,” Blum said. “There is no way in which these two law firms can kind of disassemble or obfuscate what they’re doing.”
In a statement, Perkins said it planned to fight the suit: “As a firm, we have been a leader in efforts to promote diversity, equity and inclusion in the legal profession. Our commitment to those values remains steadfast.” Morrison Foerster did not respond to a request for comment.
The lawsuits against Perkins Coie and Morrison Foerster are based in part on a Civil War era statute, Section 1981, which prohibits racial discrimination in contracts by public and private bodies.
They do not rely directly on June’s 6-2 Supreme Court decision in Students for Fair Admissions vs Harvard, which declared decades-old admissions policies unconstitutional. But a concurring opinion from conservative justice Neil Gorsuch in that case — in which he stated that “it is always unlawful to discriminate among persons even in part because of race, colour, or national origin” — had created “a pathway [from challenging] the use of race to achieve diversity in college admissions to [challenging] the use of race to achieve diversity in corporate hiring and promotion etc,” Blum said.
The Supreme Court decision has also emboldened conservative lawmakers across the US. Republican senator Tom Cotton wrote to dozens of law firms in July, warning them to “preserve relevant documents in anticipation of investigations and litigation” over race-based employment practices. Last week five Republican attorneys-general advising leading US firms to “immediately terminate any unlawful race-based quotas or preferences” or risk being “held accountable — sooner rather than later”.
Jean Lee, president and chief executive officer of the Minority Corporate Counsel Association, which advocates for under-represented groups, said the legal community was “not surprised” by the recent challenges, particularly after the Supreme Court’s 6-3 conservative majority was cemented.
In their responses to such lawsuits, “you will see who is truly committed to diversity, equity and inclusion, you will know who really meant what they said when they issued those statements after George Floyd”, Lee said.
She added that firms “should be thinking more creatively” about increasing diversity, including ensuring that they retain diverse staff already on the payroll, and widening recruitment efforts.
Blum said he was also in favour of firms “casting a wide net in order to find unique individuals as opposed to just focusing strictly on race and ethnicity”.
“There’s plenty of smart kids of all races who are graduating from less competitive law schools where you can find talent,” he said. “You just have to go look for it.”
