The effect will be to handicap DEI efforts, at the cost of business independence and even if sound business reasons exist for inclusion.

The American Alliance for Equal Rights last week sued two law firms, Perkins Coie and Morrison Foerster. Edward Blum heads the Alliance. Blum also headed one of the groups that brought the case against Harvard. That case resulted in the landmark Supreme Court decision which dealt what could be a death blow to affirmative action. In the suits aginst the law firms, the Alliance alleges that the firms’ diversity fellowship programs discriminates against white people. The programs are only open to people of color, those with disabilities, or who are LGBTQ.

The litigation comes shortly after letters from Sen. Tom Cotton (R-Ark.) and a Republican Equal Employment Opportunity Commission member threatening suits against numerous law firms with DEI programs. Apparently, Blum and the Republicans are not content to attack colleges and universities. They intend to stamp out any programs of businesses that do anything that smacks of favoring anybody but whites.

The ramifications of the onslaught are terrifying, frankly. The diversity numbers in law firms and the legal profession are already abysmal. Creating programs to alleviate that record is the right thing to do. Unless you want to perpetuate a system that systematically favors white men. 

But beyond morality, there are substantial business independence concerns

But beyond morality, there are substantial business independence concerns. As a litigator, I realized that as a white male with a comparatively privileged background, I could not possibly understand the mindset of those diverse from me. I could not know and understand the impact of their experiences. 

It’s a simple fact that juries are no longer composed of privileged white men. I need diverse people on my team and in my law firm to be effective. (Assuming that Blum and his ilk don’t next attack the jury system and demand we revert to all-white juries). In addition, clients of law firms are made up of increasingly diverse people. (Yes, I know. Blum wants that to change, too). 

It’s ironic that the party that always supported business now wants to deprive businesses of the ability to to do what they think they need to do to succeed in a multicultural society.

But without programs designed to improve diversity in law, we won’t have those diverse people on our team. That strikes fundamentally at my business’ interests and independence. 

It’s ironic that the party that always supported business now wants to deprive businesses of the ability to to do what they think they need to do to succeed in a multicultural society.

(It’s also ironic that businesses may now use the same argument that once upon a time businesses opposing civil rights used to fight the Civil Rights Act. But those arguments were not based on a desire for business independence but on hatred and bigotry. The world is fundamentally different now, and the business imperative to diversify has changed). 

Blum would argue that all this is not what he and the Alliance are fighting for. They just want everything to be “equal” and that white males have the same chance as diverse candidates. Bullshit. Separate but equal didn’t work then, and it won’t work today. 

Moreover, it’s a slippery slope. If you give whites an equal chance but then choose a diverse candidate, you better be able to show that the diverse candidate had better credentials than the white male. Not different credentials. Better ones on the same scale. A scale which, of course, favors white men. 

If the system Blum wanted worked, then we wouldn’t have such horrible diversity statistics in the legal system

If the system Blum wanted worked, then we wouldn’t have such horrible diversity statistics in the legal system. The system he wants favors white men. And that’s the point.

There’s another danger lurking here. The Complaint alleges that there is a “Member A” who is ready, willing, and able to apply for the fellowships. But poor thing, since he is white, he hasn’t. You heard that right: he hasn’t applied nor been rejected. He just would apply if the law firms would only change their policy. 

Last time I checked, the concept of standing was still in Article III of the Constitution. The clause is designed to avoid courts issuing advisory opinions. You supposedly need a “case or controversy” to bring a lawsuit. But Member A hasn’t been harmed. And for that matter, neither has the Alliance. Which begs the question why the Alliance can bring the suit on the mysterious Member A.

The remedy if you don’t like a law is in the legislature, not the courts

What the Alliance wants a nice and tidy ruling changing the law. Think of the repercussions of this. Anyone, anytime, can sue for something they don’t like without having been harmed. Don’t like the law? Just sue even if you aren’t harmed by it. The suits seek to erode a fundamental judicial concept just to advance a political viewpoint. That’s never been how it worked. The remedy if you don’t like a law is in the legislature, not the courts. And the fact you are fearful you can’t succeed in the legislature is not a good reason to resort to the courts.

And, of course, if Member A had been harmed and sought damages, he might have to face a jury trial. A jury that would likely be diverse and not be terribly sympathetic. So instead, the Alliance, which has not been harmed at all, brings the suit and asks primarily for an injunction, which is decided by a the court not a jury.

And not just any court. The Alliance chose to sue the Perkins firm in Texas and the Morrison firm in Florida. This, despite the facts they are headquartered in Seattle, Washington, and San Francisco, respectively. Hmm, I wonder why.

These are the first of many such claims we are going to see as people like Blum seek to impose their world order on all aspects of American life even at the cost of business independence. It’s a travesty and a mockery of our system.