April 29, 2024

Merit, Admissions, and the Supreme Court: A Summary of the Discussion at the Annual Meeting’s Showcase CLE, June 16, 2023[1]

The Diversity Conference presented its showcase CLE on June 16, 2023 at the VSB Annual Meeting. At the time, Affirmative Action was facing its day at the Supreme Court, and no one knew the outcome. However, everyone guessed how the Court would rule. Therefore, what would a potential ruling mean for schools and employers? The Panelists consisted of Carlos Brown, senior vice president and general counsel for Dominion Resources, Professor Brandon Hasbrouck of Washington and Lee School of Law, Senior District Judge John A. Gibney, U.S. District Court for the Eastern District of Virginia, and Monica Monday, Managing Partner, Gentry Locke.

Professor Hasbrouck detailed the history of affirmative action where for 45 years, race-conscious programs were found constitutional, and benefited both students and schools. He named many cases such as Bakke, Rudder, and the case against University of Texas, as the Court ruled in all three cases that race can be one factor but the purpose of the question on an application must be narrowly tailored. He provided an overview of the oral arguments in the Students for Fair Admission case, where the plaintiffs were suing to get admissions departments at Harvard and the University of North Carolina to end conduct to find out about race or ethnicity in the admissions process. He noted one question from Justice Ketanji-Brown Jackson, asking if someone who is a first generation college student whose family has been around North Carolina since the Civil War, should admissions consider that factor with a potential student? As far as corporations were concerned, Professor Hasbrouck stated that companies should not read into a decision that should be limited to higher education.

The discussion turned to the effect on law schools and the profession. Professor Hasbrouck stated that nine states have prohibited use of affirmative action but schools have evaluated other factors including school attended, and provided credit for socio-economic status. Monday indicated that from a law firm point of view, the E and I part is limited in DEI as there are fewer recruiting opportunities but firms need to work on retention. To start, Monday urged firms to recognize different paths to success. She pointed out that early client contact and court room experience helps with associate retention. “We need cultural training, implicit bias training.” She urged the audience to be inclusive and celebrate different holidays.

Brown turned the discussion to the presumption of a person of greater merit being denied due to giving woman or minority getting the seat. As an example, he pointed to the LSAT, which was introduced to make admissions more equitable. He urged a discussion more generally about what is merit? He noted that if you only have those with the highest LSAT/SAT scores in your class: there would be no football players, no band instrumentalists, and no foreign language speakers. Monday urged firm leaders to look beyond the elite schools to find good candidates, reminding the audience that they are there. As law schools move to 100% virtual interviews, this is an opportunity to look beyond the schools you regularly approach. She pointed out that the Bar that appears in front of Supreme Court is the most elite group around, and wondered if we could have more people appear in front of Supreme Court?

When it came to hiring in the law firm setting, the panel urged attendees to take a different approach. “For Firms that say ‘we hire T15 schools only’ most of their current employees do not qualify,” stated Brown.

Professor Hasbrouck noted that clients continue to demand diversity and will ask. He stated that private employers can have quotas for races as that is still constitutional. However, that will be challenged in the future. The conversation turned to how the hiring process plays out and if it really finds the most meritorious candidate for the job. Brown urged widening the pool of applicants when discussing criteria for hiring.

Brown stated, “The practice is to get a pool from HR, then you choose finalists and then spend time with each person. That (choice) is not the best qualified person. You find someone who you like based on your personal criteria. Meritocracy is a myth based on subjective criteria when we entered the room. Make decisions to widen your pool when making criteria for hiring. Change way we talk about merit and qualification.” Professor Hasbrouck noted that such practices include excluding by class rank and urged giving more opportunities early on in careers, “the young lawyers will shock you.”

Monday stated if the pipeline gets clogged by a trickle down from a Supreme Court decision, General Counsels will continue to demand that law firms diversify. Law firms will have to wake up to diversifying because clients demand it, therefore, they will have to continue to think creatively. If pipeline shrinks, big firms will wave money at diverse candidates from mid-size and small firms. She urged firms to make relationships at the high school level, such as serving as speakers and providing internships for students to get the pool increased.

Judge Gibney asked the panel to assume affirmative action was no longer legal, how do you advise clients with hiring practices? Monday said that while race conscious hiring may be out, training will continue. She also stated that firms should assume that the Supreme Court decision will be applied in the employment context and be creative to find candidates and work on retention.

Monday urged attendees to better sell the small firm experience. She noted as an example, there are incredible opportunities for success in these firms such as getting into courtroom quickly. This aspect of practice could keep diverse students in Virginia, she noted. Professor Hasbrouck observed that a lot of institutions say their policies are race neutral and that most schools are strategizing on how to comply with the ABA Rule 206. He noted that there is a lot of value in bringing people of diverse experiences to discuss an issue or solve a problem. “Institutions will adjust but there will be a fight for values,” said Professor Hasbrouck. Judge Gibney noted that recruitment people need to be trained to articulate legitimate reasons to make employment decisions. Brown noted that those in one or two person firms must be visible, but so do the students

[1] This panel took place before the Supreme Court ruled in Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College on June 30, 2023, stating that Affirmative Action is no longer lawful for colleges and universities in their admission practices.