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A corporate law firm that was accused of racial discrimination for offering a diversity fellowship to law students of underrepresented groups has opened its program to students of all races, according to a change on its website.

A few weeks earlier, Morrison Foerster, based in San Francisco, was sued for excluding nonminority students from the program. The lawsuit was brought by the American Alliance for Equal Rights (AAER), founded by conservative activist Edward Blum, who was behind the cases that culminated in the Supreme Court<a href="https://www.washingtonpost.com/politics/2023/06/29/affirmative-action-supreme-court-ruling/" target=_blank> striking down affirmative action </a>in college admissions. Now his groups are among those launching a broader campaign to dismantle diversity initiatives in the private sector.

Morrison Foerster is one of two law firms that are now facing legal action over diversity fellowships. The AAER lawsuit alleges that the Keith Wetmore Fellowship for Excellence, Diversity and Inclusion at Morrison Foerster “excludes certain applicants based on their skin color.”

The application for the <a href="https://www.florecruit.com/v2/app/mofo/jobs/NzEwfjhXVUo0aHFneTI1U1hVUmtTNTBXQmlYQVN4SnhPdg==/apply" target=_blank>fellowship</a>, which started in 2012, used to describe the program as being for first-year law students who are members of “a diverse population that has historically been underrepresented in the legal profession,” including Black, Latino, Native American and LGBTQ+ people.

Black businesses targeted in lawsuit alleging program discriminates

Weeks after the lawsuit was filed, all references to race have been removed from the program page on the Morrison Foerster website. The move signals uncertainty about how the fellowship and others like it will hold up to legal scrutiny as litigants try to translate the race-blind Supreme Court stance on college admissions to the private sector.

The <a href="https://www.mofo.com/culture/diversity/recruitment-development" target=_blank>program</a> is now framed as recognizing “exceptional first and second-year law students with a demonstrated commitment to diversity and inclusion in the legal profession.” The change was first <a href="https://www.freebeacon.com/courts/law-firm-sued-over-diversity-fellowship-folds/" target=_blank>reported</a> by the Washington Free Beacon. Morrison Foerster did not respond to a request for comment from The Washington Post.

Among the criteria for fellowship <a href="https://assets.contentstack.io/v3/assets/blt5775cc69c999c255/blt4784e1e271e130ec/wetmore-fellowship-flyer.pdf" target=_blank>applicants</a>, Morrison Foerster includes an “ability to bring a diverse perspective to the firm as a result of your adaptability, cultural fluency, resilience, and life experiences” as well as a “demonstrated commitment to promoting diversity, inclusion, and accessibility.”

Universities and private employers are “looking for workarounds” amid the legal battle over diversity and inclusion efforts, according to Kenneth Davis, a professor of law and ethics at Fordham University. “In both arenas, they are facing a giant wave of pushback,” Davis said. “Human resource departments are scurrying trying to figure out, ‘How much ground do we have to give up without giving up the issue altogether?’ ”

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The law industry has long struggled to diversify its workforce. Though Black people comprise about 14 percent of the population in the United States, less than 5 percent of practicing attorneys are Black, a share that has grown less than 1 percent since 2010, <a href="https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2022/july-august/how-to-improve-diversity-in-the-legal-profession/" target=_blank>according</a> to the American Bar Association. About 10 percent of practicing attorneys fall into other minority groups. Overall, the share of ethnic minorities in the legal profession has grown 6 percent since 2010, according to the association.

Since late June, when the Supreme Court ruled against the use of affirmative action in college and university admissions, there has been a flurry of legal activity that seeks to test the high court’s view on the consideration of race in matters of employment.

In July, 13 attorneys general sent a letter to the Fortune 100 chief executives, <a href="https://www.washingtonpost.com/technology/2023/07/15/affirmative-action-workplace-diversity-equity-inclusion/" target=_blank>warning</a> the overturning of affirmative action could have ramifications for corporate diversity, equity and inclusion programs. America First Legal, the conservative nonprofit group backed by former <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> adviser Stephen Miller, has filed complaints in recent months against Kellogg, Nordstrom and Activision Blizzard, alleging that their diversity and inclusion policies constitute racial discrimination.

Along with the lawsuits against Morrison Foerster and Perkins Coie, AAER has also sued Fearless Fund, a venture capital firm based in Atlanta, over <a href="https://www.washingtonpost.com/business/2023/08/26/dei-lawsuit-black-businesses-fearless-fund-edward-blum/" target=_blank>its grant program</a> for early-stage businesses owned by Black women. In the cases against Morrison Foerster and Perkins Coie, AAER has claimed that the firms are violating a section of the Civil Rights Act of 1866 that prohibits racial discrimination in contracts.

Affirmative action ruling opens fire at corporate diversity programs

“The law abhors racial discrimination. The lawyers who help administer that law are supposed to abhor it too,” the complaint against Morrison Foerster states. By operating a fellowship program specifically for law students of Black, Latino and Indigenous descent, as well as members of the LGBTQ+ community, the complaint states that the law firm “has been racially discriminating against future lawyers for more than a decade.”

Perkins Coie declined to comment on whether it plans to alter its program, referring to a previous statement on the complaint. “We will defend this lawsuit vigorously,” Perkins Coie spokesman Justin Cole said after the lawsuit was filed.

The Wetmore fellowship includes a paid summer associate position, guidance from attorney mentors and an award of $25,000 if the student completes the full summer program and an additional $25,000 if the student returns the following summer and accepts a full-time position upon graduation.

The lawsuits against Morrison Foerster and Perkins Coie seek temporary restraining orders that would bar the firms from selecting fellows, as well as permanent injunctions ending the programs. They also seek declarations stating the programs violate the civil rights statute. AAER “is awaiting a formal reply from Morrison Foerster to the district court to our motion for a preliminary injunction,” Blum told The Post.

2021 Gerald Loeb Award for beat reporting

Indiana University, BA in Journalism and Spanish

Taylor Telford is a reporter covering corporate culture for The Washington Post. 

Taylor Telford

Law firm opens diversity fellowship to all students after lawsuit

the-washington-post

Edward Blum at the Supreme Court of the United States in Washington, DC

For The Washington Post

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washpost

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