Washington Lawyer - March/April 2024 - 11

FEATURE
in federal court that Section 1981 of the Civil Rights Act of 1866 prohibits
racial bias in private contracts.
Fearless Fund argued that its grants of venture capital funds for Black
women-owned businesses, administered through a nonprofit foundation,
are charitable contributions protected as speech under the First
Amendment.
A judge in the Northern District of Georgia denied AAER's request for
an injunction to halt the grant-selection process, agreeing with Fearless
Fund's argument that its grants are protected speech. AAER took the
case to the U.S. Court of Appeals for the Eleventh Circuit, which heard
oral arguments at the end of January.
Blum's group " opposes race-conscious remedial programs in all forms
and exists for the sole purpose of attacking them in the courts, " Senger
and other Gibson Dunn lawyers argued in a brief to the Eleventh Circuit.
" Forcing the [Fearless] Foundation to adopt race-neutral criteria would
disable the Foundation from conveying its message on the precise topic
it seeks to address: economic disadvantages faced by Black women. "
Another case that could spark a new wave of reverse discrimination
claims is Muldrow v. City of St. Louis, which the U.S. Supreme Court heard
on December 6. At issue is whether an employee can claim discrimination
under Title VII of the Civil Rights Act of 1964 for lateral transfers by
an employer without also demonstrating an adverse effect.
" Depending on how the Supreme Court rules, it could significantly expand
the scope of conduct in the workplace that could give rise to Title
VII claims, " Senger says. " It could really lead to a proliferation of Title VII
litigation challenging corporate DEI programs. "
White and others have noted that Justice Neil Gorsuch's concurring opinion
in the Students for Fair Admissions case explicitly drew a connection
between the High Court's 14th Amendment analysis and the Title VII
statute " next door, " suggesting that the Court's conservative majority is
open to such claims.
At Paul, Weiss, former U.S. Attorney General Loretta E. Lynch is leading a
new practice in Washington, D.C., and New York City that offers services
to companies whose diversity programs are under attack. The firm's DEI
Strategic Advisory Group includes former Secretary of Homeland Security
Jeh C. Johnson and the firm's Washington, D.C., office managing partner
Jeannie S. Rhee.
" With companies across America facing challenges to their DEI public
commitments from all directions, the need for clarity in the DEI area is
acute, " Lynch said in a statement announcing the new practice group.
McGuireWoods formed a multidisciplinary team that includes members
of its government contracting, commercial litigation, and corporate governance
practices. " What we see, to the degree that past is prologue, is
that [challenges] begin in higher education, but they do not end there, "
says White, coleader of the firm's DEI team.
" There is no absolution from constitutional norms if race-based determinations
are declared to be unconstitutional, or at the very least frowned
upon. And companies are intelligent to think through [the question],
how do we operate in that environment? " White says.
" We are looking at the landscape of corporate America and the attributes
[relating] to diversity and inclusion and asking, how do we navigate
in that landscape? That is what the practice that we have put together
is designed to do, " he adds.
In August, Davis Wright Tremaine LLP launched its DEI Strategic Consulting,
Support, and Defense Group to " provide clients with a suite of services
to support continued advancement of DEI goals. "
" Our clients recognize that DEI is essential to their success, " said Kate
Tylee Herz, partner at the firm and coleader of its new DEI practice, in
a statement. " Our team will leverage decades of combined experience
in the DEI arena to make certain that in-house counsel, HR teams, and
DEI professionals have the tools they need. "
OUTLOOK ON DEI PRACTICE
To be sure, the battle over diversity is highly politicized. State attorneys
general from opposite ends of the political spectrum have jumped into
the fray, only adding to the need for clear guidance.
In July, attorneys general from 13 states sent a letter to Fortune 100 CEOs
warning them to end racial preferences in hiring. " Companies that engage
in racial discrimination should and will face serious legal consequences, "
wrote the attorneys general of Alabama, Arkansas, Indiana,
Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South
Carolina, Tennessee, and West Virginia. " If your company previously resorted
to racial preferences or naked quotas to offset its bigotry, that discriminatory
path is now definitively closed. "
What we see,
to the degree
that past is prologue, is that
[challenges] begin in higher
education, but they do not
end there.
JACK L. WHITE
McGuireWoods LLP
That same month, 21 attorneys general, including District of Columbia
Attorney General Brian Schwalb, responded, condemning the letter's
" tone of intimidation, which purposefully seeks to undermine efforts to
reduce racial inequities in corporate America. "
" We are focused on actual unlawful discrimination, not the baseless assertion
that any attempts to address racial disparity are by their very nature
unlawful, " the group said.
Not everyone accepts that Blum and his backers have case law on their
side in their bid to broaden the attack on affirmative action to corporate
DEI programs.
" What the plaintiffs in the Harvard case and, generally speaking, the opponents
of affirmative action are trying to do is conflate two ideas because
college admissions is really where, over the years, the court has backMARCH/APRIL
2024 * WASHINGTON LAWYER 11
McGuireWoods LLP
Washington Lawyer - March/April 2024

Table of Contents for the Digital Edition of Washington Lawyer - March/April 2024
