The SFFA v. Harvard decision restricted universities and colleges’ use of affirmative action to build more diverse student bodies. Immediately after, Republican groups began using it as a cudgel against law firms, med schools, and law students trying to write papers for their journals. The Blum group is itching for a test case to broaden the score of anti-affirmative action outcomes. After targeting Morrison Foerster, the firm folded. The next to give up is Gibson Dunn. From Bloomberg Law:
Gibson, Dunn & Crutcher changed the eligibility criteria for its diversity scholarships, becoming at least the second major law firm to take the step as rivals face lawsuits targeting similar programs.
The firm’s $50,000 diversity and inclusion scholarship goes to students “who have demonstrated resilience and excellence on their path toward a career in law,” under the new language, which is a change from “students who identify with an underrepresented group,” according to the archival Wayback Machine website.
The changed language, cookie cutter as it is, is still preferable to the
libertarians “thought diversity” candidates the MoFo language change seems catered toward. Both quitters have chosen to use the word resilience in their lawsuit-evading language.
The Blum groups behind these suits might be dumb, but they’re not that dumb. It doesn’t take much peering between the lines to see that the word resilience is functioning as the new Black. It’s probably more accurate to say that resilience is the new white woman as they’re the greatest beneficiaries of affirmative action programs, but you see my point. The exact wording of these diversity initiatives doesn’t matter nearly as much as the outcomes. Either the programs will result in all white male cohorts which will thwart all manner of meaningful connections and positions people of color can occupy down the line, or the admittance of any minority will still set off the pro-SFFA types who will threaten to sue – regardless of the applicant’s credentials. Trump nominated a slew of judges that even the ABA wouldn’t co-sign and a little experienced jurist who couldn’t remember the First Amendment to fill Scalia’s seat while Biden’s judicial nominees have to be the next Learned Hand to be even worthy of consideration.
If there is going to be any teeth to them, some firm is going to have to step up and fight the disparate discrimination claim that these diversity scholarships will bring about. We know it won’t be MoFo or Gibson. Perkins Coie has promised to “vigorously” defend against such suits and I hope that they win. Because if it’s not them, it definitely won’t be Jones Day.
Gibson Dunn Changes Diversity Award Criteria as Firms Face Suits [Bloomberg Law]
Earlier: The Slippery Slope Of Ending Affirmative Action Has Moved On To Its Next Target: Women And ‘Proxies For Diversity’
Biglaw Caves: Morrison Foerster Changes Diversity Fellowship Criteria Following Lawsuit
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.