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, Sidley 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.
"If you’re the law student or recent grad who prevails in a lawsuit against one of these programs, you’re marked for life," Trachman said. "Law firms know that, so there’s little fear in their hearts that they’re actually going to face dangerous legal exposure."
Wachtell Lipton, ranked the best firm for mergers and acquisitions by Vault.com, and Baker McKenzie, ranked the best firm overall by the National Law Journal, limit their diversity fellowships to students from "underrepresented" groups, who receive a summer associate job and, in Baker McKenzie’s case, a $10,000 bonus. Susman Godfrey, Vault’s top-ranked litigation boutique for 11 years straight, awards "students of color" a $3,000 cash prize and a summer clerkship.
Sidley Austin, the law firm where Barack and Michelle Obama met, runs a mentorship program that gives "preference" to "Black/African American, Latino/Hispanic, Asian, South Asian, Native Hawaiian/Other Pacific Islander, American Indian/Alaska Native, Middle Eastern/North African," or "multiracial" law students. And Winston & Strawn, which has litigated some of the most high-profile antitrust cases in recent memory, offers a $50,000 "scholarship" to summer associates who are "racial/ethnic minorities."
"I’d say that all of them violate Title VII and the 1866 Civil Rights Act"—the laws banning discrimination in employment and contracting, respectively—said David Bernstein, a professor at George Mason University Law School, "including the one that purports to be a scholarship, but is quite obviously an employment bonus." While private entities can dole out scholarships based on race, they cannot engage in pay discrimination or otherwise privilege minority employees.
Wachtell Lipton, Winston & Strawn, Baker McKenzie, Sidley Austin, and Susman Godfrey did not respond to requests for comment.
The affirmative action verdict may be changing firms’ calculus about whether to defend race-based programs. When Edward Blum, the activist behind the Supreme Court’s decision, sued Morrison & Foerster in August, the firm folded eight days later, opening its diversity fellowship to white applicants. The ruling is widely expected to have a chilling effect on such programs and to embolden challenges to them: Even law firms like Covington & Burling, which has blessed race-based policies at major companies, are now warning their clients about the legal risks of racial preferences, as conservative groups gear up for a major campaign against corporate diversity initiatives.
When firms’ own initiatives are challenged, Trachman said, "it will be hard for them to win the lawsuits on the merits."
Not every program is equally vulnerable. Sidley Austin’s does not require participants to be employed by the firm, which could complicate claims of employment discrimination, and winners of the Susman Godfrey prize do not need to accept a summer clerkship, which could make it harder to argue that the program is a contract subject to the 1866 Civil Rights Act, said Dan Morenoff, the executive director of the American Civil Rights Project.
Both programs nonetheless "raise serious questions," Morenoff said. And the diversity fellowship at Wachtell—one of the best paying firms in the world—is "clearly illegal."
"They have expressly set aside a quota of first year positions based on race," Morenoff said. "They can’t possibly defend that."