“Big Law” Series: What does the "end" of DEI mean for students and "big law" job prospects? (Part II)

Context: DEI initiatives and Equal Protection

Several of my law school courses have explored whether DEI initiatives are legal under the 14th Amendment––the Constitutional requirement to treat all individuals equal. Even if they are legal, do DEI initiatives propel marginalized individuals forward? Or is “‘[d]iversity,’ for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue,'" as Justice Thomas posed in his concurrence in the 2003 Supreme Court case, Grutter v. Bollinger?

The job market in an evolving “Equal Protection” landscape

President Trump’s cabinet asserts that DEI initiatives are not legal. Several “big law” firms have been the subjects of Executive Orders commanding them to halt their DEI practices, forgo certain pro bono projects, and end relationships with partisan clients. What do the orders mean for first-generation students applying for post-bar jobs? Although many “big law” firms recognize value in these DEI initiatives and are fighting to keep them in place, a growing contingent of big law firms have acquiesced. To avoid an Executive Order, the capitulating firms have promised the Trump administration hundreds of "pro bono" hours worth millions of dollars. Other large law firms have (thus far) remained silent.

Big Law "Spine Index"

As a law student, my news feed is filled with reactions against those firms bowing down to the Trump administration: open letters by associates threatening resignation; "big law" partners initiating focus groups for other partners to act; or data suggesting 1L students applying to jobs are avoiding those firms. The American Bar Association, law school deans, and various law school faculty have also issued statements against the Trump administration's actions. These entities, or members of the entities, also recognize value in recruiting diverse, first-generation students to their firms. They also observe a sizable risk to that goal in eliminating these programs.

So, how does this affect first-generation law students seeking admissions at law schools?

This year is the most competitive year in history for getting into law school. Law school admissions offices often consider a variety of factors––such as GPA, LSAT (law school admissions test) score, undergraduate institution and area of study, and reasons for attending law school––when determining which students to admit and how much financial aid to award them. With DEI programs coming to an end, will law school admissions be impacted? 

In my opinion, they will not be impacted significantly, if at all. Law schools have been afforded wide leeway to institute holistic review of applicants in the admissions process. See Grutter, 539 U.S. at 346. Programs which DEI initiatives may have been useful to “counteract”––like college admission legacy programs––have been largely dismantled. 

In Grutter, then-Chief Justice Rehnquist (joined by Justices Scalia, Kennedy, and Thomas) asserted that the University of Michigan Law School’s DEI admissions statistics do not support its stated DEI goals. Id. at 380-84 (Rehnquist, J., dissenting). They argued that “the Law School’s disparate admissions practices with respect to these minority groups demonstrate that its alleged goal . . . is simply a sham.” Id. at 383.  Maybe, as Rehnquist asserted,  DEI programs are "dishonest and dangerous activity . . . [that has] undermin[ed] democratic . . . process[es]." 

Perhaps Rehnquist is right––that the end of these programs means less gaming by prospective law students or “big law” associates who feel invalidated by DEI application questions. There may be less stigma associated with vulnerable students; who are racial or ethnic minorities or low-income, and who may be cloaked with a feeling of unreservedness, a lingering question of: “Was it what I achieved despite my adversity or my diverse perspective that gained me admissions? Or am I merely an ‘aesthetic [that shapes] the Law School[‘s] certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them[?]’” Grutter, 539 U.S. at n. 3 (Thomas, J., concurring in part); see also an Op-Ed in The Atlantic about this sensation (reflecting on the autobiography Reflections of an Affirmative Action Baby).  

I will delve further into this debate in Part III, which will address whether this may affect first-generation students breaking into “big law” as a first-generation law student at a “big law” firm.