Weeks after completing a successful campaign to strike down affirmative action in higher education at the U.S. Supreme Court, conservative legal activist Edward Blum is back in the courtroom — this time against two international law firms operating in Texas.
On Tuesday, Blum-founded nonprofit American Alliance for Equal Rights sued Perkins Coie in Dallas federal court and sued Morrison Foerster in Miami federal court alleging that their diversity fellowships for first- and second-year law students illegally discriminate against some of AAFER’s members — namely white, heterosexual males.
Perkins Coie, which has offices in Dallas and Austin, defines qualifying applicants for its diversity fellowships as students of color, students who identify as LGBTQ+ and students with disabilities — disqualifying any heterosexual and nondisabled applicant if they are white, according to AAFER’s lawsuit.
Morrison Forester, which opened its only Texas office in Austin last year, defines diverse candidates for its Keith Wetmore 1L Fellowship as members of historically underrepresented groups, specifically applicants who are African American, Latinx, Native American, Native Alaskan and/or members of the LGBTQ+ community.
“In other words, if they are heterosexual, applicants are disqualified if they are white, Arab American, Asian American, or otherwise not one of Morrison’s favored races,” the lawsuit says.
“This kind of rank discrimination was never lawful, even before SFFA v. Harvard held that colleges cannot use race in admissions.”
Blum’s lawsuits come after weeks of chatter in the legal and larger business world about whether private companies will be the next targets of race-based affirmative action litigation. Though SCOTUS’ decision in the Harvard case only addressed affirmative action in higher education, a concurring opinion by Justice Neil Gorsuch said that there was no reason Title VII of the civil rights laws — which covers workplace discrimination — is any different from Title VI, which governs higher education, since the wording in both laws prohibiting discrimination is extremely similar.
The new litigation also comes weeks after Republican attorneys general sent a letter to Fortune 100 companies warning them against race-based affirmative action and a year after the biggest political battle of 2022 — abortion — culminated in the Supreme Court tossing it as a federally protected right. Texas’ swift decision to ban abortion thereafter resulted in Texas Republican legislators sending a July 2022 letter addressed to Sidley Austin global chair Yvette Ostolaza that threatened Sidley — and any law firm operating in Texas — with criminal prosecution, civil sanctions and even disbarment if they assisted their employees in getting out-of-state abortions.
This week’s new lawsuits refer to two unnamed law students, both called “Member A” in their respective suits, who are AAFER members who satisfy all the criteria for the firms’ diversity fellowships “except the discriminatory one” — both are white, heterosexual men.
The Dallas lawsuit’s Member A is a first-year student at an ABA-accredited law school who aspires to begin his legal career in Perkins Coie’s Dallas office. Before law school, he worked as a paralegal at several law firms assisting immigrants and worked at a national nonprofit assisting religious minorities.
The Miami lawsuit’s Member A, also a first-year, attended an Ivy League college, authored a best-selling book and held senior leadership positions in several nonprofits, working on local and national political campaigns and grassroots efforts. He wishes to begin his legal career in Miami at Morrison Foerster.
According to Texas Lawbook research, six out of eight of the Perkins Coie lawyers promoted to partner in the firm’s Texas offices between 2019 and 2023 were white. Half of the promoted lawyers were male, and of those, three out of four were white. Because Morrison Foerster only entered the Texas market a year ago, there is no partner promotion data for its Texas attorneys.
In a statement, a Perkins Coie spokesperson said the firm will put up a fight.
“As a firm, we have been a leader in efforts to promote diversity, equity and inclusion in the legal profession,” the statement said. “Our commitment to those values remains steadfast. We will defend this lawsuit vigorously.”
Morrison Foerster and Blum’s lawyers did not respond to requests for comment.
“As highlighted in the complaint, these two law firms have been violating the law for many years,” Blum told The Texas Lawbook in an email on Thursday. “The objective of the litigation is to end the racially exclusive internships at these two firms and throughout the industry.”
In a statement issued Tuesday announcing the lawsuits, Blum called the firms’ race-based fellowship selection process “unfair, polarizing and illegal.”
“Law firms that have racially exclusive programs should immediately make them available to all applicants, regardless of their race,” he said. “In dozens of polls, nearly 75 percent of all Americans, including majorities of Blacks and Hispanics, believe a job applicant’s race should not be a factor in hiring or promotion decisions. These law firms are fostering policies that diminish individuals’ unique qualifications and accomplishments.”
In both lawsuits, the plaintiff seeks an injunction ordering the firms to end their diversity fellowships, rewrite the eligibility requirements to race-neutral factors and, if necessary, redo applications and selections for the fellows “in a strictly race-neutral manner.”
The Perkins Coie lawsuit has been assigned to U.S. District Judge Sam Lindsay, with U.S. Magistrate Judge Renee Toliver handling some of the matters brought before the court. The Morrison Foerster suit has been assigned to U.S. District Judge Kathleen Williams, and pretrial nondispositive matters will be handled by U.S. Magistrate Judge Kathleen Williams.
AAFER’s lawyers in the Dallas case are James Hasson, Cameron Norris, Tiffany Bates and Steven Begakis of Consovoy McCarthy in Arlington, Virginia. (But according to the lawsuit, Begakis lives in Fort Worth.) Norris and Bates are part of the plaintiffs’ legal team in Miami, which also includes Winter Park attorneys Michael Sasso and Christian Bonta of Sasso & Sasso and Nashville attorney Adam Mortara of Lawfair LLC.
The cause number for the Perkins Coie lawsuit is 3:23-cv-01877-L in the Dallas division of the Northern District of Texas.
The cause number for the Morrison Foerster lawsuit is 1:23-cv-23189-KMW in the Miami division of the Southern District of Florida.
Editor’s Note: This article has been updated to include a comment provided to The Lawbook by Blum.