In the wake of Students for Fair Admissions (SFFA) v. Harvard ruling, every program incorporating elements of racial equity has been perceived as subject to the 14th Amendment violation. The trend was recently observed in Illinois where a policy promotes diversity through “oral-argument affirmative action” found itself under scrutiny. The policy, which was rescinded by two federal judges, endeavored to amplify the participation of “newer, female and minority” attorneys in arguing motions. ABA Journal reported on this development.
The now rescinded policies established that after a motion had been briefed, the court could be notified if a relatively inexperienced, female, or minority attorney was set to argue the motion, given argument request approval. This in practice would result in the court granting the request when viable, considering granting extra time for argument, and would also allow for more experienced lawyers to offer support.
While this might not appear as a substantial blow personally to Diversity, Equity, and Inclusion (DEI), the introduction of “affirmative action” prefixed policies now seem susceptible to being axed. This promises to be a tactical play for groups desiring the downfall of such policies.
Furthermore, it is posited that anything, including health bills aimed at addressing increasing rates of infant mortality among Black women, could be subjected to the guise of “affirmative action” and be viewed as a constitutional violation under the 14th Amendment. Even this allegation has found its manifestations.
Countering this approach, which seems hellbent on undoing the advances of civil rights, will require more than merely airing views on digital platforms like LinkedIn, as per Above the Law. Legitimate action, including lawsuits, appears the fitting response for such regressive strategies. The journey, undeniably, includes the need to endure potentially challenging oral argument sessions.
Amending courtroom practices through actions like these may not sound like immense losses for DEI but cannot disregard possible negative trends. As legal professionals, we owe it to the community to stay abreast of these changes and question practices that may undermine diversity and equal representation. A vigilant watch is key.