Blum Says He’s Done Suing Law Firms as Winston Yields on DEI (2)

Affirmative-action foe Edward Blum said a group he started that files lawsuits challenging diversity programs has no new plans to sue any more law firms.

“There’s nothing left for us to do in that space,” he said in an interview.

Law firms are no longer raising red flags with their diversity, equity and inclusion programs, he said. However, a researcher for his group still combs websites of hundreds of firms looking for any evidence of programs he views as illegal, he said.

Blum’s two-year-old group, the American Alliance for Equal Rights, has filed lawsuits against some of the country’s most elite firms, including Perkins Coie and Morrison Foerster. The suits alleged that the firms’ diversity programs discriminated against straight, white men.

The alliance withdrew the suits after firms removed mentions of race or gender in their programs’ eligibility criteria. Other firms have quietly made similar changes to their criteria out of fear of being Blum’s next target.

The alliance withdrew its suit against Winston & Strawn on Dec. 6. The firm had until Dec. 11 to respond to AAER’s complaint that alleges the program is discriminatory.

Winston & Strawn has hired the same team out of Jenner & Block that defended Perkins Coie in that firm’s AAER lawsuit. The alliance hired Consovoy McCarthy PLLC to litigate the cases.

Winston Changes

Winston hosts an annual diversity fellowship for first-year law students in collaboration with the Leadership Council on Legal Diversity. The program, which started accepting applications on Dec. 1, has removed aspects of the eligibility criteria that made mentions of applicants’ “membership in a disadvantaged and/or historically underrepresented group in the legal profession,” according to the archival Wayback machine website.

“Although we have updated the language for our program, Winston’s abiding commitment to diversity, to innovative ways to enhance it, and to our LCLD scholars program will continue, notwithstanding the recent wave of litigation attacking the motivations behind DEI programs,” the firm said in a statement.

Winston initially had defended its original language. “Your implication that the terms ‘disadvantaged’ and ‘historically underrepresented’ necessarily refer to race is baseless,” said Cardelle Spangler, managing partner of Winston’s Chicago office, in a Oct. 13 letter to Blum’s group. “Winston & Strawn does not make employment decisions on the basis of race or ethnicity.”

The firm’s summer program is a recruiting tool designed to boost diversity in their junior associate ranks. Fellows are paid at the rate of a first-year associate’s base salary of $215,000. Certain fellows have a chance to receive an additional $50,000.

Recruitment Effects

The changes in diversity language at law firms will affect recruitment, said Nikia Gray, executive director of the National Association for Law Placement. Firms that heavily rely on the programs for their junior recruitment will have to embrace new methods to meet their goals, she said.

People of color make up less than 29% of associates at law firms, according to a 2022 NALP report. The report surveyed roughly 150 law firms. Attorneys of color make up less than 12% of partners at the firms.

Diversity-focused programs are essential to the legal profession, according to Jean Kuei, program committee chair for the Leadership Council on Legal Diversity’s alumni network.

Kuei was a mid-career fellow for one of LCLD’s diversity-focused professional development programs in 2016 and became partner at her firm the year after. She’s part of the less than 5% of diverse women partners at law firms, according to NALP’s diversity report.

“These fellowship programs are to create that pipeline, and to create more leaders, so that cannot be an excuse for why in major corporations and law firms there aren’t more minorities, more women and more diversity,” said Kuei, a partner in Pillsbury Winthrop’s labor and employment practice.

Many programs now include mentions of applicants’ commitment to diversity in the legal profession as a replacement for race-based criteria. Perkins’ and MoFo’s revised fellowships began accepting applications in mid-November for their summer associate cohorts, which will join firms in mid-2024.

Declaring ‘Victory’

It makes sense for the legal complaints to be withdrawn instead of facing a likely series of losses when a firm makes program alterations during litigation, according to Richik Sarkar, who chairs LCLD’s alumni network.

Blum and others “realized that if that was done then there’s nothing that they can really argue about,” said Sarkar, a partner at Dinsmore & Schol. It was better that they filed the suit, see program changes, declare victory and move on, he said.

Blum also led the group that sued Harvard University, the case in which the US Supreme Court dismantled affirmative action in higher education. The high court’s June decision has opened a new avenue for scrutiny of private-sector diversity initiatives.

If any new programs or issues arise that cause concern, Blum said his group would likely send a letter before engaging in any more legal action. The group put firms on notice in a series of letters calling out their DEI programs.

Blum isn’t the only conservative targeting private employers over their DEI initiatives. Former Trump senior policy adviser Stephen Miller’s group, American First Legal, asked the Equal Employment Opportunity Commission to investigate Macy’s Inc. as well as other corporations such as Kellogg Co. and Activision Blizzard Inc. over diversity initiatives.

Despite the challenges, legal diversity leaders such as Kuei said they remain adamant about staying the course.

“We need to be smart to deal with the political forces in our country,” Kuei said. “However, we still have this unwavering commitment to DEI that will continue to be our commitment for years to come.”

The case is American Alliance for Equal Rights v. Winston & Strawn LLP, S.D. Tex., No. 4:23-cv-04113.