Diversity and inclusion advocates were left disappointed when the US Supreme Court effectively ended affirmative action policies by colleges and universities that had been intended to address diversity concerns.
In June, the court ruled in a 6-3 opinion in Students for Fair Admissions v President & Fellows of Harvard College that race-conscious admissions programmes at two universities violated the 14th Amendment, the part of the US Constitution that prevents laws that “abridge” the privileges or immunities of citizens.
Universities across the US had instituted race-conscious policies to address systemic racism and cultivate a more diverse class of students.
While the ruling did not apply to intellectual property per se, the sector is no exception when it comes to struggles with race and diversity.
A 2019 report by the American Intellectual Property Law Association (AIPLA) found that 1.7% of IP lawyers in the US were black, and 1.9% were Hispanic. In the wider US population, black Americans make up around 13%, and Hispanic Americans around 19%.
IP counsel note that the SCOTUS decision doesn’t directly affect law firms because it doesn’t apply to private businesses. But they are concerned that it could make recruitment more challenging down the line.
Jeanne Gills, partner at Foley & Lardner in Chicago and speaking in a personal capacity, says the ruling could affect firms’ ability to recruit from underrepresented groups.
“If fewer racially diverse applicants are admitted to universities, particularly universities and law schools where law firms recruit from, it reduces the pipeline of [diverse] lawyers that come into our organisation,” she says.
Lower intake
Others agree that firms could face recruitment challenges.
Tom Chen, co-chair of Haynes Boone's attorney diversity and inclusion committee in California, expects that the ruling will result in less enrolment from underrepresented students in undergraduate institutions and law schools.
History bears this out.
The state of California instituted a ban on affirmative action at its public universities, which took effect in 1998. That year, enrolment from black and Latino students at the University of California, Los Angeles, and at the University of California, Berkeley plummeted by 40%.
An amicus brief submitted in last month’s case by presidents and chancellors of California-based universities – which includes 10 campuses – found that in 2019, 52.3% of California public high school graduates identified as Latino but just 24.45% of first-year students at the California institutions did so. By contrast, 5.5% of graduates identified as African American but just 3.87% of first-years did.
The presidents noted that despite race-neutral measures, the universities hadn’t achieved enough diversity.
Counsel are concerned that a similar situation could play out across universities now that affirmative action is banned nationwide.
Legal circles
Even though last month's SCOTUS case did not concern law firms’ diversity efforts, it’s possible that future cases could target law firms, say sources.
Brian Brookey, chair of the equity, diversity, and inclusion committee at Tucker Ellis in Washington DC, says disgruntled students who are disappointed not to be hired could launch lawsuits against firms, alleging that they weren’t hired because of diversity efforts or affirmative action plans put in place by law firms.
“The kind of antipathy towards efforts to recruit and retain members of underrepresented groups infects the entire majority opinion and it’s very easy to see the possibility of litigation coming down the road,” he says.
“The reasoning that the court gave, you could see easily translate to an employment discrimination case.”
However, he expects law firms would not struggle to prevail should such suits arise.
Firms could shield themselves by being holistic in their recruiting and hiring approaches and not having anything that appears to be a quota, he suggests.
Business as usual
Counsel who spoke to Managing IP say they’re certainly not planning to stop their diversity efforts because of the SCOTUS decision.
Gills at Foley & Lardner says she would encourage firms and corporations to continue the work that they’re doing and not to be spooked.
“If anything, they should double down on what they’re doing,” she says.
She adds that there’s a misconception that affirmative action programmes only benefit those who have been disenfranchised.
“They benefit everyone,” she says. “When we bring a diversity of thought, leadership, and experience, it allows us to think differently about how to create opportunities and solve problems.
“As a leader within my firm, I’m not going to stop what I’m doing because I’ve seen over the course of my 30 years, the success that comes from having diverse teams.”
Brookey at Tucker Ellis says he wouldn’t like to see any law firm use this decision as an excuse to scale back diversity efforts.
Ramping up recruitment
There are a number of initiatives that counsel hope will allow them to recruit a diverse group of attorneys, even if this decision makes doing so more challenging.
Chen at Haynes Boone says his firm has been focusing more on recruiting from historically black colleges and universities, such as Howard University in Washington DC.
“We’ve been doing very well recruiting from Howard Law School, but obviously there are a number of law schools that are highly representative of underrepresented legal communities,” he says.
“So I think firms can focus more of their recruiting efforts on some of those schools to get a bigger pool of diverse candidates that they can interview.”
Gills at Foley & Lardner agrees that firms could focus more on recruiting from these kind of institutions.
“Maybe some of those students don’t get into Harvard, but they’re out there, we know they’re talented and we can do more recruiting there,” she says.
Bijal Vakil, founding partner of Allen & Overy's Silicon Valley and San Francisco offices, says his firm might take a closer look at law schools that continue to have a diverse class.
“We believe that’s best for the clients and the firm and provides the best results,” he says.
Talent pipeline
Counsel also want to focus on encouraging students to consider law before starting college.
Chen says his firm hires students from underprivileged high schools as summer interns.
“If we can get more diverse students in high school or college thinking about law, then we’ll see a higher number applying and hopefully a higher number being accepted and admitted,” he says.
Gills says her firm sponsors a Martin Luther King Jr oratory competition for students in fourth and fifth grade – around nine to 11 years old.
“We also follow those students over the course of their academic career. Those students, at a very young age, are exposed to lawyers, judges, politicians, and other business professionals. And they see people who look like them,” she says.
She adds that firms should continue to mentor and develop and train people once they’re hired.
“There are race-based gaps in health, wealth and housing that still exist today. So where we can mentor, develop and champion lawyers within our organisation that we know have faced some of those obstacles, that’s how we push forward.
“We’ve got to continue to do that and do that even more than what we’re doing now,” she says.
It will take some time before firms and counsel truly understand the long-term implications of this ruling.
But firms will have to continue and – in many cases – increase their diversity efforts if they don’t want the decision to set their efforts back too much.
