NY State Bar Unveils Post-Affirmative Action DEI Strategies

By Marco Poggio | September 20, 2023, 4:52 PM EDT ·

Members of a New York State Bar Association task force on Wednesday urged leaders in higher education, law and the corporate world to implement meaningful and legally permissible race-neutral criteria to advance diversity and inclusion goals in the wake of the Supreme Court's decision ending affirmative action in university admissions.

Former U.S. Attorney General Loretta Lynch, former Homeland Security Secretary Jeh Johnson, and Paul Weiss Rifkind Wharton & Garrison LLP chairman Brad Karp discussed a newly released state bar report suggesting pathways that colleges, law firms, corporations and courts can pursue to preserve diversity in the aftermath of the high court's decision in June finding race-conscious admissions policies in higher education unconstitutional.

"We recommend that universities take a strong look at admissions policies and practices that may serve as barriers to equal opportunity in admissions," Johnson said during a press conference at Paul Weiss' Manhattan headquarters. "We encourage that colleges and universities very clearly set forth standards and goals which are something the lack of which the Supreme Court criticized."

Johnson, who became Paul Weiss' first Black partner in 1994, said prior Supreme Court rulings upholding affirmative action — such as the one in Regents of the University of California v. Bakke, which came down when he was a Morehouse College senior pondering a career in the law — had allowed people of color to achieve success in society and serve in the country's highest political and judicial roles.

"Diversity in higher education, in the judgment of many, including myself, has led to a more perfect union," he said.

In the report, which called the high court's ruling in June a "setback" but also a "call to action" for people supporting diversity and inclusion policies, the 50-member task force provided dozens of recommendations to boost diversity that it says will survive legal scrutiny moving forward.

The task force conceded in its report that the affirmative action decision was "the law of the land and must be followed. The question now is where do those in higher education, business, the legal profession, and the judiciary go from here?"

To increase diversity in the judiciary, the report said the court system should encourage diverse candidates to apply, require bias training for judges, court personnel and jurors, and work with bar associations and affinity groups to publicize pathways to becoming a judge. Courts should also recruit in communities with higher percentages of underrepresented groups and ensure that job postings are inclusionary, the report said.

In higher education, the report recommends ditching standardized tests and the preferential treatment often given to athletes, the children of alumni, and the family members of donors. Instead, the report advised colleges and universities to admit the highest-ranking student at every high school in the state, and to consider factors such as socioeconomic status and whether students are first-generation college applicants.

The task force, which included the chairs of 16 major law firms, the chief legal officers of 10 large corporations, five New York judges, and the deans of Columbia and New York University law schools, recommended that private employers continue DEI efforts while paying special attention to how those efforts are perceived. The report recommended that corporations and law firms identify specific benefits of diversity in the workplace and develop programs that increase those benefits.

The task force said corporate diversity efforts continue to be lawful as long as they comply with federal anti-discrimination statutes such as Title VI and Title VII of the Civil Rights Act, and Section 1981 of Title 42 of the U.S. Code.

On June 29, the Supreme Court ruled in two distinct but related cases — Students for Fair Admissions Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions Inc. v. University of North Carolina — that race cannot be used as the only factor in admission to universities and colleges, both public and private. Since then, the ripple effect of the ruling has already been felt beyond the world of education.

"We don't think it's going to stop here," New York State Bar Association President Richard Lewis said at the press conference.

Employers across the country have already been grappling with what the decision means for their efforts to create and maintain a diverse workforce. Law firms in particular have been struggling with its fallout as the legal industry remains overwhelmingly white and male.

A national movement opposing affirmative action has continued to pursue legal action to further curtail the use of race as a means to select candidates for jobs. In August, the same conservative group behind the legal fight that led to the high court's recent affirmative action ruling sued Perkins Coie LLP and Morrison Foerster LLP over their diversity fellowship programs for law students, saying they discriminate against non-minority applicants.

"There will be lawsuits galore in the weeks and months and years to come," Karp said during the press conference. "That will just cause our resolve to be that much greater as we protect diversity in the very best of our abilities."

Lynch, who joined Paul Weiss as a partner in 2019, said during the press conference that the Supreme Court's ruling in the Harvard and UNC cases created an imperative to more thoroughly document DEI policies.

"I think what you're going to see are universities, as well as other organizations in society, being very clear about their goal of attaining diversity across all types of the metric, and things that they are doing that are perfectly permissible in order to achieve that goal," she said.

Kapil Longani, the general counsel at State University of New York and a member of the state bar's task force, said during the press conference that race will — and should — continue to be part of admission decisions at higher education institutions.

"I want to be crystal clear: This is not about race-blind admissions. Race still matters," he said.

--Editing by Marygrace Anderson.

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