US law firms looking for ways to protect diversity programs three months after a US Supreme Court decision have fresh tools from the New York state bar.

A bar task force working on a 30-day deadline issued a plan for firms to protect diversity, equity and inclusion programs after a June 29 Supreme Court decision effectively barred universities from using race as a factor in admissions.

“Our aim is to help firms and institutions minimize unnecessary changes to valuable DEI initiatives that are perfectly legal and good,” said Julie Jones, chair of Ropes & Gray and a member of the task force.

The New York State Bar Association road-map issued 12 days ago shows how law firms feel besieged by conservative lawmakers and anti-affirmative action groups after the high court decision. Gibson, Dunn & Crutcher and Morrison Foerster changed criteria language for diversity scholarships after the American Alliance for Equal Rights sued law firms in August claiming the fellowships are unlawful.

The report is a direct response to the court’s decision, which targeted higher education but is important for law firms and private corporations, said Tsedale Melaku, a sociologist and author of “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism.”

“We’ve always known that the lack of diversity to begin with in educational institutions only amplifies the lack of diversity in the legal profession,” Melaku said.

The 93-page report suggests ways law firms can legally attract and retain diverse talent. It recommends that firms look past the top law schools for associate recruiting, invest in pre-law pipeline programs and stop giving partners complete discretion to choose associates because the approach often disadvantages diverse attorneys.

Employers who abandon DEI initiatives “may perpetuate historic pay discrimination or other policies or practices that have a lopsided and unfair impact on certain protected classes,” the report said.

The bar plan offers a way forward, said Rekha Chiruvolu, chief diversity officer of the Rand Corporation, a nonpartisan think tank. “They’re offering tangible ideas,” said Chiruvolu, formerly the head of DEI for Nixon Peabody. “That’s a really helpful tool for any private employer to have.”

DEI Targeted

One of Edward Blum’s anti-affirmative action groups, Students for Fair Admissions, brought the lawsuit that resulted in the Supreme Court ruling. Then the American Alliance for Equal Rights, another one of his groups, sued Morrison & Foerster and Perkins Coie in August.

Meanwhile, five Republican state attorneys general sent a letter Aug. 29 to the top 100 law firms to “ensure that you fully comply with your legal duty to treat all individuals equally—without regard to race, color, or national origin—in your employment and contracting practices.” Sen. Tom Cotton (R-Ark.) put law firms on notice for their DEI programs in a similar letter on July 17.

New York state bar president Richard Lewis responded by appointing a task force co-chaired by three Paul Weiss attorneys—Loretta Lynch, the former US attorney general, Jeh Johnson, the former Homeland Security secretary, and Brad Karp, the firm’s chairman. Nearly four dozen other Big Law attorneys and law school deans joined them on the task force.

A law firm working group within the task force consisted of a handful of leaders including Alden Millard, chair of Simpson Thacher’s executive committee, and Caren Ulrich Stacy, founder of the Diversity Lab, a group that hosts DEI-focused fellowships and certifications for the legal profession.

Uncertain Time

The report gives the earliest definition of the post-affirmative action decision landscape, Lewis said upon the document’s release Sept. 20. “Our goal is to tell people what the new landscape is, how we’re going to navigate that landscape and how we think things are going to progress from here,” he said at a press conference.

The report offers useful guidance during an uncertain time, according to Robin Nunn, a partner at Linklaters. “The law is often gray and this a new and important area we are grappling with,” she said.

Adam Klein, managing partner of Outten & Golden, said his firm already employs many of the report’s recommendations. DEI is considered a core competency of the firm, he said.

“There are lots of ways to solve the problem,” said Klein, a member of the bar task force. “Number one is to just be very critical about what’s worked, what hasn’t worked and what’s the path going forward.”