Washington Lawyer - March/April 2024 - 10

FEATURE
Defending
Diversity
DEI PRACTICE GROUPS ON THE RISE
By William Roberts
F
ollowing the U.S. Supreme Court's decision last
year striking down affirmative action in college
admissions, U.S. law firms are launching new
practice groups to meet growing demand from
employers for advice and counsel on their diversity
initiatives.
Several large law firms, including Paul, Weiss, Rifkind, Wharton & Garrison
LLP; Gibson, Dunn & Crutcher LLP; and McGuireWoods LLP, have formed
teams aimed at helping companies reduce their legal risk and defend
diversity efforts.
Driving the trend is the Court's landmark ruling in Students for Fair Admissions,
Inc. v. President and Fellows of Harvard College, holding that raceconscious
admissions policies violate the Equal Protection Clause of the
14th Amendment. The decision spawned a new spate of lawsuits aimed
at diversity hiring practices at a wide range of organizations, including
private companies and even law firms.
" What companies believe is that the [Students for Fair Admissions] decision
will not, over time, be limited to higher education. And the cases that
have come after [it] are proving that to be correct, " says Jack L. White,
a partner at Richmond, Virginia-based McGuireWoods.
Indeed, dozens of cases challenging diversity initiatives have been filed in
state and federal courts since the fall of affirmative action. Among the first
10 WASHINGTON LAWYER
* MARCH/APRIL 2024
was a case in the U.S.
District Court for the
Eastern District of Tennessee,
Ultima Services
Corp. v. U.S. Department
of Agriculture. Ultima,
owned by a white woman,
had sued after its
contracts were not renewed
by the USDA
while the agency reserved
funding for " socially
disadvantaged "
minority bidders.
U.S. District Judge Clifton
L. Corker applied a strict
scrutiny test, finding that
USDA and Small Business
Administration (SBA)
programs relied on a " rebuttable
presumption "
that persons of specific
racial and ethnic backgrounds
had faced disadvantages.
The judge
ruled that the agencies
violated Ultima's equal protection rights under the Fifth Amendment,
forcing the SBA to pause applications in its 8(a) Business Development
program aimed at helping disadvantaged businesses.
Edward Jay Blum, president of both Students for Fair Admissions and the
Alliance for Fair Board Recruitment, has brought a number of challenges
to diversity rules, including against the state of California and the U.S. Securities
and Exchange Commission. Blum is now campaigning against diversity
initiatives in corporate America.
" This membership organization is committed to challenging race-based
policies at any corporation, law firm, institution, or government agency.
We encourage anyone with knowledge of these unlawful programs to
contact us, " Blum says.
LAW FIRMS SPRING INTO ACTION
Among the first to respond to the new legal climate was Gibson Dunn,
forming a DEI task force in July 2023 and drawing on its experience in
employment, appellate, and constitutional law to help clients meet their
diversity, equity, and inclusion (DEI) goals.
" Our work in this space has been focused on two areas. We've been doing
both advice work and litigation, " says Molly T. Senger, a partner in
Gibson Dunn's litigation department and employment practice group
in Washington, D.C., and coleader of the firm's new DEI group.
Among the firm's clients is Fearless Fund, an Atlanta-based venture capital
group that turned to Gibson Dunn for defense against a suit by the
American Alliance for Equal Rights (AAER), also headed by Blum. AAER
claimed that Fearless Fund, which has provided financing to small businesses
owned by women of color since 2018, was violating the law by
limiting a grant and mentorship program to Black women. AAER asserted
Alamy
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