Written by Sometime in the next few months, the Supreme Court is expected to rule on two landmark cases which will determine the immediate future of affirmative action, limited for the moment to its effect on higher education admissions. At issue: the race-conscious admissions policies in use at Harvard University, one of the nation’s oldest and most prestigious universities, and the University of North Carolina, one of the oldest public universities in the country.
The plaintiff uses two different paths to attack the institution of affirmative action: while Harvard’s policies are alleged to be a violation of Title VI of the Civil Rights Act, which prevents institutions that receive federal funding from race-based discrimination, the race-conscious policies at North Carolina were alleged to be a violation of the 14th amendment’s Equal Protection clause, which bans racial discrimination by government entities (including public universities).
The Supreme Court, of course, has ruled multiple times on the issue of affirmative action, upholding it most recently in a 2016 case (Fisher v. University of Texas at Austin) in which the Court concluded that “the consideration of race, within the full context of the entire application, may be beneficial to any UT-Austin applicant, including [the] whites and Asian-Americans” against whom the suit had alleged such consideration discriminated. More notably, the 2003 Grutter v. Bollinger decision outlined the divided Court’s opinion that neither the 14th amendment nor Title VI of the Civil Rights Act “prohibit[ed] the…narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
The Court now stands on the precipice of overruling one of its own precedents, with those on both sides of the argument girding themselves for such a decision. The plaintiffs cite the very Grutter decision they seek to overturn, noting its optimistic musing that institutions should strive for an admissions policy that was blind to the need to consider race, and that race-conscious policies would be rendered obsolete within 25 years by the achievement of the stated goal of racial diversity. Affirmative action’s defenders appear unmoved, echoing the Department of Justice’s stated concern that “a blanket ban on race conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions.”
At Phillips Kaiser, we are watching these cases with more than a passing interest in the short- and long-term ramifications of the Court’s upcoming decisions. While the cases before the Court are centered on higher education, it takes little imagination to see that if the Court weakens or eliminates affirmative action in higher education, its decision will send ripples, if not waves, throughout multiple other sectors and spheres of influence, including the hiring practices of multiple other industries.
But we want to make one thing perfectly clear: it won’t change the way we do business one bit. We know that corporate law firms have trailed even the marginal progress made by American society at large in creating diverse environments where minority voices are not only present, but elevated. And we understand that encouraging such diversity isn’t a legal imperative, but a moral one.
“We know that corporate law firms have trailed even the marginal progress made by American society at large in creating diverse environments where minority voices are not only present, but elevated. And we understand that encouraging such diversity isn’t a legal imperative, but a moral one.”
— Craig Kaiser, Principal
When we started The Legacy Project in 2021, it was not only in response to a nation that was clearly crying out as ardently as ever for racial justice. It was because our combined decades of experience in corporate law had reinforced the need to undertake a project of this magnitude.
We knew the numbers, of course. According to the American Bar Association’s 2020 Profile of the Legal Profession, a scant 5% of lawyers are African American; 5% are Latinx, 2% are Asian, and a mere 1.3% are Native American. And these numbers dip even lower when applied specifically to a corporate transactional law practice. But numbers merely reinforce our own shared experience of rarely encountering a diverse attorney on the other side of the table in our combined decades of practicing corporate transactional law. It’s a sad state of affairs when you can count on both hands the number of diverse lawyers you’ve worked with on a transaction over a more than 30-year career… but here we are.
The Legacy Project isn’t timely; if anything, it’s overdue.
While we know many firms that focus on hiring diverse lawyers, we know of few, who expend their resources to develop them for the long haul, wherever their career interest take them. The stated goal of the Legacy Project is to change the homogenous cultures that drive diverse attorneys away from their original places of hire, in search of values more aligned with their own.
“The stated goal of the Legacy Project is to change the homogenous cultures that drive diverse attorneys away from their original places of hire, in search of values more aligned with their own.”
— Craig Kaiser, Principal
Our program is designed to groom minority lawyers for long-term success in the field of corporate transactional law, offering comprehensive and targeted training in the key areas a lawyer needs to excel in order to be successful, all while launching or continuing their legal careers at Phillips Kaiser.
“Our program is designed to groom minority lawyers for long-term success in the field of corporate transactional law, offering comprehensive and targeted training in the key areas a lawyer needs to excel in order to be successful, all while launching or continuing their legal careers at Phillips Kaiser.”
— Craig Kaiser, Principal
The Legacy Project and its goals are not just the right thing to do. They are smart business.
An attorney team that looks alike and sounds alike tends to think alike as well… and the solutions they offer may not be identical, but they will certainly tend to rhyme. Contrast that with a team of lawyers from different backgrounds, different world views, and different life experiences. The solutions such a team will offer are usually indicative of the very diversity that makes it remarkable.
Diversity inevitably leads to increased empathy, improved problem-solving, and an overall workforce that is more capable of addressing the needs of a wide variety of clients.
“Diversity inevitably leads to increased empathy, improved problem-solving, and an overall workforce that is more capable of addressing the needs of a wide variety of clients.”
— Craig Kaiser, Principal
At Phillips Kaiser, we’re proud to be building a racially diverse team. We know that in a field that has been overwhelmingly white and male, and in a country that has long favored the same white, male demographic, change will not happen overnight, and evolution will certainly not happen naturally. We’re striving to lead just such a purposeful evolution, and we’re hopeful and confident that many law firms will follow suit.
