by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Five of America’s top law firms operate diversity programs that exclude white applicants or explicitly favor minorities, creating what experts say is a target rich environment for conservative litigants seeking to press the advantage in the wake of the Supreme Court’s affirmative action ruling.
Morrison & Foerster and Perkins Coie were sued last month over their minority-only fellowships. But other white-shoe law firms, including Wachtell Lipton, Winston & Strawn, Baker McKenzie, Sidney Austin, and Susman Godfrey, also use racial criteria to dispense professional opportunities, from paid internships to mentoring programs to cash awards, meaning that the outcome of the case could reverberate broadly throughout the legal profession. The firms are some of the most prestigious in the country and routinely top the lists of elite law firm rankings.
While the terms of each program vary, all of them are vulnerable to civil rights lawsuits, lawyers and law professors said, especially after the June decision outlawing affirmative action in higher education.
“These law firms are all pushing the envelope,” said Kenneth Marcus, who served as the Assistant Secretary for Civil Rights at the Education Department during the Trump administration. “In the wake of the Supreme Court’s recent Harvard and University of North Carolina cases, we should expect more legal challenges to corporations and law firms that engage in this form of discrimination.”
While many white-shoe firms have initiatives aimed at boosting minority representation, these firms go further, limiting or entirely excluding white applicants from programs that can pay as much as $3,100 a week, in the case of Wachtell Lipton.
The programs, which have been on the books for years, illustrate just how blasé some legal elites have become about violations of civil rights law. The chutzpah is understandable, said William Trachman, the general counsel for Mountain States Legal Foundation, since challenging a firm’s diversity policy is a surefire way to get blackballed from Big Law.