On Monday, Winston & Strawn became the third law firm to be sued by Edward Blum, the conservative legal activist behind this summer’s blockbuster affirmative action decision at the U.S. Supreme Court.
The lawsuit, filed Monday in Houston federal court by Blum’s advocacy organization, American Alliance for Equal Rights, alleges Winston’s 1L LCLD Scholars Program “has been racially discriminating against future lawyers for years” because the only law students considered for the DEI-oriented fellowship are those who “belong to a group that is ‘diverse,’ ‘disadvantaged’ or ‘historically underrepresented’ — Winston’s shorthand for not a straight white male.”
The organization behind the LCLD 1L fellowship, the Leadership Council on Legal Diversity program is a national organization that has multiple programs that aim to diversify the legal profession by offering mentorship, leadership training and guidance to diverse law students from historically underrepresented groups. Several law firms operating in Texas have supported the program in recent years, including Jackson Walker, Bell Nunnally, Baker McKenzie, Hunton Andrews Kurth and Katten.
The lawsuit comes a few weeks after Blum sent Winston a demand letter asking whether the Chicago-founded firm plans to proceed with its program next year or change it.
“Winston responded on Oct. 13, 2023, crowing that it was ‘proud of the program’ and that the program ‘will continue’ unchanged,” the lawsuit says.
Winston is one of several law firms Blum has either sued or sent demand letters to this year challenging DEI programs — namely, fellowships for diverse law students — in light of this summer’s Students for Fair Admissions v. Harvard Supreme Court decision, which made race-based affirmative action in higher education unlawful. Other firms targeted by Blum include Susman Godfrey, Fox Rothschild, Hunton Andrews Kurth, Morrison Foerster, Perkins Coie and Adams and Reese.
Blum and his lawyers did not immediately return messages seeking comment. Nor did firm officials at Winston.
Perkins Coie and MoFo were the first two firms Blum sued. He sued Perkins Coie in Dallas federal court and MoFo in Miami federal court. Blum dropped both lawsuits earlier this month after both firms expanded their diversity fellowships to all students.
According to the new lawsuit, Winston “quietly modified” its description of the LCLD program to say that applicants “of all races, ethnic-genders, disabilities, orientations, and socio-economic or other backgrounds are eligible to apply.”
“Though Winston will now apparently let everyone ‘apply,’ it does not say that everyone has an equal chance of being selected, regardless of race,” the lawsuit says. “In other words, race remains a factor, and, between two otherwise equal applicants, Winston can prefer a racial minority to a white student. Per its letter to Alliance, it will continue doing so because the program has not changed.”
In their lawsuit, Blum and AAFER cite two students identified as Member A and Member B who want to apply to the LCLD program but can’t, based on Winston’s current criteria. Member A, who “loves Texas,” is most interested in working in Winston’s Houston office, the lawsuit says.
The lawsuit seeks for the court to order that Winston’s LCLD program violates Section 1981 of the Civil Rights Act of 1866 and issue an injunction ordering the firm to end its program “as currently constituted,” change the eligibility requirements and potentially redo applications and selections for 1L LCLD scholars “in a strictly race-neutral manner.”
Blum’s lead lawyer is Consovoy McCarthy partner Cameron Norris. The legal team also includes partner Thomas McCarthy and associates Gabe Anderson and James Hasson of Consovoy McCarthy and Adam Mortara of Lawfair LLC. Anderson and Hasson are both licensed in Texas. Hasson is a former clerk for Fifth Circuit Judge Edith Jones and served a deployment in Afghanistan as a U.S. Army officer before going to law school.
The lawsuit is yet to be assigned to a district judge in the Southern District of Texas. The cause number is 4:23-cv-04113.
Editor’s Note: The Lawbook has learned that Susman Godfrey has responded to the demand letter it recently received from Blum. Check back later for a separate story on that development.