Lawyers Are Now Obstructing Equal Protection under the Laws

I n his landmark 6–3 majority opinion in Students for Fair Admissions v. Harvard, striking down affirmative action, Chief Justice John Roberts wrote, “Eliminating racial discrimination means eliminating all of it.” In response to this ruling, law firms across America should have begun reforming their “Diversity, Equity, Inclusion” (DEI) programs while urging their clients to do the same. Unfortunately, those who should be the most familiar with our civil-rights laws and the Constitution are among their most flagrant violators.

Although the case focused on colleges and universities, the ruling has crucial implications for civil-rights statutes that govern all private-sector employers. Title VI of the Civil Rights Act, for example, prohibits recipients of federal funds from discriminating based on race, while Title VII prohibits private employers from hiring based on race. Through these two provisions of federal law, the court’s findings in Students for Fair Admissions also likely prohibit affirmative-action hiring and promotion in addition to affirmative-action admission.

Big-name law firms should have predicted such a ruling and crafted their corporate practices accordingly. While a few seem to have been aware of dangers, most have helped lead the DEI movement.

In the wake of the 2020 Black Lives Matter riots, in particular, many of America’s largest law firms accelerated their DEI hiring and policy implementation. Within a year, more than 20 of the top 100 law firms employed “chief diversity officers,” and 64 percent of respondents to one survey said that their law firms had hired DEI officers in the previous twelve months.

This isn’t new, though. In 2012, for example, the law firm Latham & Watkins offered a “Diversity Scholars Program” that required only an applicant’s contact information, law-school name, class year, how they heard about the program, and a list of minority groups with which they identify. The law firm White & Case offers a $50,000 stipend for certain summer interns — the requirement is to write a 500-word essay about a time “when you felt most proud of your diverse identity,” followed by a “video screening.”

Other law firms have embraced more-brazen hiring and promotion policies, including setting numerical racial quotas for employees. Others have offered “stipends” worth tens of thousands of dollars for “diverse” law students only.

In 2022, the law firm Orrick bragged that its summer associates were 92 percent “lawyers of color,” women, or LGBTQ+. As with Harvard’s racial discrimination, numbers so far out of line with the applicant pool aren’t statistically possible without discrimination.

Worst of all, these law firms have misled their clients. Corporations such as Best Buy have gone so far as to exclude selected races from certain professional-training programs, seemingly without their lawyers warning that these types of practices violate the law.

The Students for Fair Admissions ruling made clear that DEI programs that treat employees differently based on race are illegal. Law firms should immediately end these policies and urge their clients to do the same, or else risk lawsuits and extensive investigations.

Congress should begin scrutinizing these DEI practices, and I urge state attorneys general to do the same. But we shouldn’t stop there. In accordance with Title VI, the federal government ought to begin severing ties with companies and law firms that use DEI to discriminate based on race. States should similarly enforce their own anti-discrimination laws and urge companies to embrace merit-based hiring and promotions. No American should be excluded from consideration for opportunities because of his or her race.

Students for Fair Admissions represents a crucial next step toward a color-blind, meritocratic society. Lawyers should lead this effort, not stand in the way.