Legal Challenges to Law Firm Diversity Programs

By Emma Betz, Staff Writer

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This year, the Supreme Court of the United States ruled to prohibit affirmative action policies embedded in college admissions practices to increase the number of underrepresented minority students on campuses.[1] As a result of the Court’s decision, other programs that have also used race as a factor in the evaluation process of applicants decided to follow anti-affirmative action initiatives after threats of legal action. Specifically, law firms that have previously offered diversity fellowship opportunities to law students in an effort to promote diversity in the legal profession have decided to alter the language used when advertising for its fellowship programs.[2]

An international, San Francisco-founded law firm, Morrison & Forester, recently decided to remove language “specifying that the fellowship is only open to Black, Hispanic, Native American or LGBT applicants,” according to a flyer for the fellowship program shared on the firm’s website.[3] Originally, the paid fellowships offered to students through Morrison & Forester’s diversity program were partly designed to support the recruitment of people of color because major law firms have struggled to increase the diversity amongst its attorneys, and specifically its partners.[4] The firm’s decision to change the language included in its advertisement for the fellowship program took place soon after the firm was served a motion for a preliminary injunction by the American Alliance for Equal Rights.[5]

The complaint filed by the American Alliance for Equal Rights alleged that Morrison & Forester “has been racially discriminating against future lawyers for more than a decade.”[6] The American Alliance for Equal Rights specifically pointed to the firm’s Keith Wetmore 1L Fellowship for Excellence, Diversity, and Inclusion, which it alleges “excludes certain applicants based on their skin color.”[7] Prior to being sued, Morrison & Forester’s website advertising the program said that the fellowship was intended for law students “who are members of historically underrepresented groups in the legal industry.”[8] This language has since been removed from the advertisement and now only states that applicants interested in the fellowship program must bring a diverse perspective to the firm based on the applicant’s “adaptability, cultural fluency, resilience, and life experiences.”[9]

In addition to Morrison & Forester, a global, Seattle-founded law firm, Perkins Coie, has been threatened with legal action from the same anti-affirmative action activist alliance for having a similar fellowship program available to interested law students who are “students of color,” students who “identify as LGBTQ+,” and “students with disabilities.”[10] Perkins Coie, however, has plans to defend itself differently because of its strong commitment to increasing diversity within the legal profession.[11]

Diversity fellowship programs have been common in the legal industry and are designed to give opportunities to law students from underrepresented backgrounds.[12] These programs, however, are now being threatened with legal action by the American Alliance for Equal Rights which alleges that firms have been engaged in unlawful discrimination against white candidates for fellowship programs.[13] Diversity fellowship programs have been fundamentally instrumental to the legal profession and they strive to increase diversity representation amongst licensed attorneys who hold positions at law firms.[14] What the future holds for diversity fellowship programs at law firms nationwide lies in the potential “chilling effect,” that lawsuits will have on these programs.[15]

[1] Andrew Chung and John Kruzel, US Supreme Court Rejects Affirmative Action in University Admissions, Reuters (June 29, 2023)

[2] Nate Raymond, US Law Firm Alters Diversity Fellowship Criteria after Lawsuit, Reuters (September 6, 2023)

[3] Id.

[4] Id.

[5] Id.

[6] Complaint at 1, American Alliance for Equal Rights v. Morrison & Forester LLP (August 22, 2023)–%20SDFL%20–%2020230822.pdf

[7] Id.

[8] Raymond, supra note 2.

[9] Id.

[10] Erin Mulvaney, Law Firms Alter Diversity Programs Amid Legal Challenges, The Wall Street Journal (October 9, 2023); See also Raymond, supra note 2.

[11] Raymond, supra note 2.

[12] Mulvaney, supra note 9.

[13] Id.

[14] Id.

[15] Id.

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