Top Law Firms Revise Diversity Programs Under Legal Pressure

Winston & Strawn and Susman Godfrey remove racial criteria, other requirements

(@WinstonLaw X, @SusmanGodfrey X)
December 6, 2023

Two top law firms in recent weeks have quietly modified their diversity programs in response to legal threats from conservatives, removing race-based eligibility criteria and other provisions that experts said violated civil rights law.

Winston & Strawn, which offered a $50,000 "scholarship" to minority summer associates, got rid of the program's racial criteria after the American Alliance for Equal Rights, a conservative nonprofit, filed a discrimination lawsuit against the firm. Susman Godfrey, which operated a diversity fellowship for "underrepresented groups," did the same amid legal threats.

Susman Godfrey also changed the terms of a separate program, the Susman Godfrey Prize, that gave "students of color" a $3,500 cash award and an offer of employment with the firm. While still only open to minorities, the prize no longer includes a job offer, exempting it from the laws banning race discrimination in contracting. The changes came after the American Alliance for Equal Rights, which was founded by the anti-affirmative-action activist Edward Blum, said it would sue the firm unless both programs were revised.

"We wish you would have complied with the law by eliminating the racial discrimination (instead of the contract)," Adam Mortara and Thomas McCarthy, who represent Blum's group, told Susman Godfrey in a letter on Wednesday. "But your revised program—handing out money based on skin color—appears to be just demeaning virtue-signaling, not a violation of [the law]."

The programs, which were first reported by the Washington Free Beacon and described as illegal by many lawyers, are among the growing casualties of conservatives' campaign against racial preferences. Two other law firms, Perkins Coie and Morrison Foerster, opened their race-based fellowships to all applicants after lawsuits from Blum's group, which has also sued Fearless Fund, a venture capital firm, for a program that invests only in black-run companies. Amid the brouhaha, Gibson Dunn, one of the law firms representing Fearless Fund, changed the criteria for its own diversity fellowship.

Several of these firms vowed to defend their programs in court before quietly backtracking. Winston Strawn said in October that its fellowship was "appropriate, legal and compliant and it will continue," and tapped two attorneys from another firm, Jenner & Block, to defend against Blum's suit. Perkins Coie likewise said it would "defend this lawsuit vigorously" but eventually folded, citing the Supreme Court's decision in Students for Fair Admissions v. Harvard, which outlawed racial preferences in college admissions.

The American Alliance for Equal Rights on Wednesday dropped its case against Winston & Strawn, saying it was satisfied by the firm's changes. But Blum, who also organized the lawsuit against Harvard, says he's not done.

The alliance is "committed to challenging race-based policies at any corporation, law firm, institution, or government agency," Blum said in a press release. "We encourage anyone with knowledge of these unlawful programs to contact us."