By Abigail Palotas, Staff Writer
Diversity programs have been under attack since the U.S. Supreme Court banned affirmative action in college and university admissions in 2023.[1] While the Court’s opinion only applied to educational institutions, its effects have spread to other industries. The legal field, which has been historically acknowledged as lacking diversity, has recently been subject to attacks on its efforts to promote inclusivity and representation. Racial and ethnic compositions of judicial clerkships reflect this widespread lack of diversity. According to the National Association for Law Placement, at the federal clerkship level, just 20% of clerks were graduates of color despite comprising 31.5% of the Class of 2021 law school graduates overall.[2]
In May 2024, the Wisconsin Institute for Law & Liberty threatened legal action against the American Bar Association (ABA) regarding its criteria for its Judicial Clerkship Program.[3] Since then, the ABA struck ‘minority’ and ‘of color’ from clerkship criteria.[4] The Judicial Clerkship Program was created 24 years ago to help increase the number of minority judicial clerks. The program required selected participating law schools to send between four and six students “from underrepresented communities of color,” and asked judges to try to hire at least two “minority judicial law clerks” over five years.[5] Now, law schools are “encouraged to select a diverse group of students,” and judges have no hiring parameters.[6]
This is just one of the latest challenges to diversity-based programs. Numerous law firms have been sued over their diversity fellowship programs, although the suits were dropped after the firms altered their application criteria.[7]
Despite widespread investment in Diversity, Equity, and Inclusion (DEI) just a few years ago following the killing of George Floyd, numerous companies in other industries have recently begun to scale back their DEI initiatives.[8] Many of these cuts have been in response to the expense of funding DEI programs as well as criticism from conservative activists. Companies such as Toyota and John Deere have scaled back their DEI programs.[9]Additionally, Tractor Supply Company, which targets rural consumers, reduced its DEI efforts in response to “disappointed” customers.[10] Big tech companies have scaled back their DEI initiatives as well. Google and Meta downsized DEI teams in 2023, and Zoom laid off its DEI team earlier this year.[11] Microsoft also recently cut two diversity-related roles and has since tried to distinguish itself from other employers scaling back DEI efforts by emphasizing that these cuts will not impact Microsoft’s global commitment to DEI.[12]
While the Supreme Court’s opinion on affirmative action in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College held only that educational institutions “may never discriminate based on race,” it is not a far jump for the Court to someday find that this same rule applies with equal force to employers.[13] In fact, Justice Gorsuch said as much in his concurrence.[14] The Court’s affirmative action ban has created a ripple effect, curbing DEI initiatives in every industry, including law.
[1] https://www.reuters.com/legal/government/aba-strikes-minority-of-color-clerkship-criteria-amid-lawsuit-threat-2024-10-08/.
[2] https://www.nalp.org/1022research
[3] https://www.reuters.com/legal/government/aba-strikes-minority-of-color-clerkship-criteria-amid-lawsuit-threat-2024-10-08/.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] https://www.npr.org/2023/08/19/1194595310/dei-affirmative-action-supreme-court-layoffs-diversity-equity-inclusion.
[9] https://abcnews4.com/news/nation-world/toyota-is-latest-major-company-to-suspend-dei-initiatives-report-says-diversity-equity-and-inclusion-robby-starbuck-respect-for-people-and-continuous-improvement-pride-month.
[10] https://www.npr.org/2024/06/28/nx-s1-5022816/tractor-supply-dei-climate-backlash; https://www.hrdive.com/news/dei-cuts-microsoft-woke-backlash/722281/.
[11] https://www.hrdive.com/news/dei-cuts-microsoft-woke-backlash/722281/.
[12] Ibid.
[13] https://www.npr.org/2023/08/19/1194595310/dei-affirmative-action-supreme-court-layoffs-diversity-equity-inclusion; SFFA v. Harvard, 600 U.S. 181, 290 (2023).
[14] Ibid.
