The lawyers battling to redress systemic racial inequalities
The US census is a once-in-a-decade opportunity to ensure the nation’s citizens are properly served. It determines the number of representatives states have in Congress and how £1.5tn in federal government funds will be allocated over the next 10 years.
So, when the Census Bureau announced in August 2020 that it would end the count a month early — a move that would potentially exclude millions of people, many of them immigrants — it was important to ask why.
The bureau had been instructed to do this by the Trump administration — which had previously also tried to have undocumented immigrants removed from the census count, and had made a failed attempt to have a question about citizenship status included on the census forms.
Speaking about the White House’s decision to override the bureau’s judgment, lawyer Melissa Arbus Sherry says: “What was really striking was to see all of that expertise just thrown to the side.” Sherry, who is a partner at Latham & Watkins, represented the National Urban League, a civil rights organisation, in a case to ensure that the count was done correctly.
And, in taking on this lawsuit, in what ultimately became the only federal case standing in the way of the government’s plan, the firm highlighted the role that lawyers can play in rectifying systemic racial inequalities.
Because of the legal questions in this case and an expectation that it might go to the Court of Appeals, Sherry, whose practice is focused on appellate courts and the Supreme Court, felt she could make a difference.
“One of the arguments we made was not so much ‘do what we think is right’, but to do what the Census Bureau’s own experts said was the right way to do things,” Sherry says. “It really should not be a political or a politically motivated process. It should be driven by the statisticians and the experts in the field.”
The breadth of the plaintiffs — from federally recognised tribes, cities including Los Angeles and San Jose, and immigrant advocacy groups — emphasised the significance of the problem, says Sherry. “Not counting these hard-to-count communities impacts representation and impacts federal funding.”
Latham & Watkins won the case on behalf of the plaintiffs, ensuring the bureau continued the count and appropriately processed the data.
In some cases, tackling present-day systemic inequality requires a long-term view and undertaking a years-long commitment.
It has taken Jefferson County in Alabama, for instance, decades to ensure equal employment opportunities and remedy past discrimination. In 1974, one out of the 1,000 people working in the region’s police and fire departments was African American, despite the population of its largest city, Birmingham, being 50 per cent black.
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When a consent decree, intended to address this problem, was challenged as “reverse discrimination” in 1983, Cravath took on the case. Generations of the firm’s lawyers have worked on it since then, from arguing in front of the Supreme Court to making sure the county developed fair hiring procedures.
Birmingham’s police and fire departments now have similar numbers of white and African American police and firefighters. The county has also hired a human resources director, created an employee hotline, and set up an ethics and compliance office.
“You hear discussions of societal structural inequalities and wealth inequalities that are perpetuated by current inequities,” notes Michael Jones, a partner at Kirkland & Ellis. But these are built upon longstanding historical imbalances, he says.
In a case that lasted a dozen years, Jones led the firm’s pro bono efforts to address underfunding of historically black colleges and universities in Maryland.
Although legal racial segregation in schools ended in 1954, the era’s policies lingered on, and the state — at least, implicitly — continued to underfund the institutions, making it nearly impossible for them to remain competitive.
For Jones, the firm’s first black partner, one challenge is that civil rights laws are mostly forward-facing. “I don’t think [the laws] sufficiently recognise that harm done in the past has a continuing impact,” he says.
In addition to court litigation, the firm had to develop a media and public relations strategy to set the historical record straight on the reasons for underfunding. “The state, for so long, had been telling the history themselves,” he says — which had been misleading.
Before studying law, Jones attended Dillard, a historically black university in New Orleans, and notes the special mission that Dillard and other historically black colleges and universities (HBCUs) share: “We had instructors, equal parts black and white . . . who were really committed to the cause of helping students from lower socio-economic backgrounds to succeed.”
The impact of that legacy hit home when he saw how students and alumni of Maryland’s four HBCUs packed the courtroom, daily, during the six-week liabilities trial in 2012.
“I have never seen anything like it. It was standing room only and people were waiting in the hallways, wanting to sit in the jury box,” says Jones.
Kirkland finally reached a historic $577m settlement on behalf of Maryland’s HBCUs in April this year.
Addressing systemic racism through the law starts with asking “why”, says Brenna DeVaney, director of the pro bono practice at Skadden Arps, Slate, Meagher & Flom and co-president of the Law Firm Antiracism Alliance, a network of nearly 300 firms focused on dismantling racism in the law.
“We look, in partnership with legal services organisations, to try to understand: what’s the system or structure that undermines or has led to that situation?” she says.
“Until we make change there, we’re going to keep seeing the symptoms and manifestations of racism on individual lives.”
Social justice, diversity and inclusion, racial justice. All case studies researched, compiled and ranked by RSGI. ‘Winner’ indicates the organisation won an FT Innovative Lawyers 2021 award
WINNER: Sullivan & Cromwell
The firm secured two precedents for the use of New York’s Domestic Violence Survivors Justice Act, which was introduced in 2019 but had not been effectively applied in court. Campaigners were concerned that the act might not lead to fairer treatment for survivors who act in self-defence, due to a lack of understanding about domestic violence and how to apply the law in such cases. In the two cases, the lawyers drew on experience of working with domestic violence charity Sanctuary for Families to secure reduced sentences through the application of the act. The lawyers pointed out misconceptions around domestic violence to help persuade the court that the defendants deserved leniency.
The firm organised a virtual event called Justice in Action, as part of its Children’s Rights Summit, in collaboration with its clients. To make legal advice more accessible, the firm invited charities and campaigners to put their legal questions to its lawyers.
As the event covered issues concerning young people, the lawyers ensured that information was accessible and palatable, covering topics such as mental health in detention, protesters’ rights and LGBT+ rights. The firm also provided attendees with tools that map these laws by city and country. The event had 400 attendees and the lawyers answered more than 1,300 legal questions.
The firm’s Policy Resolution Group worked with the Trevor Project, a charity that aims to prevent suicide among young LGBT+ people, to campaign for a three-digit number (988) for the US National Suicide Prevention Lifeline, which also directs vulnerable groups, including LGBTQ+ people, to specialist services. As part of its bipartisan lobbying strategy in the Senate and the House, the group also persuaded Democratic senator Tammy Baldwin and Republican senator Dan Sullivan to write to the Federal Communications Commission. As a result, a bill introducing the 988 number was enacted in October 2020.
Davies Ward Phillips & Vineberg
Former Canadian Supreme Court Justice Fish hired the firm to assist with a review of the Canadian military’s justice system, particularly its management of sexual misconduct cases.
The lawyers assisted with research and drafting the report, which makes 107 recommendations — all of which have been accepted in principle, with 36 being implemented so far.
Recommendations include allowing victims to go outside the chain of command to report wrongdoing and providing victims with access to therapy.
The firm’s appellate advocacy practice was called in to provide support to election processes in Pennsylvania during the presidential election in November 2020.
The lawyers successfully fought Donald Trump’s attempt to gain an injunction stopping the Pennsylvania vote count in federal court.
They also contributed 4,100 hours as volunteers on the non-partisan Election Protection Hotline, while some lawyers and paralegals volunteered as polling station monitors.
King & Spalding
Partner Brent Ray has almost a decade of experience in pro bono cases involving transgender rights.
Since he joined the firm in 2019, the firm’s pro bono team has expanded its work in this area. It worked with the non-profit American Civil Liberties Union and law firm Kirkland & Ellis to argue successfully that mistreatment of transgender prisoners in state prisons in Illinois was an infringement of their constitutional rights.
The firm is involved in cases challenging Alabama’s proposed ban on transgender medical care for adolescents, and demands for Medicaid — the US federal programme for support with medical costs — to cover transgender healthcare in Arizona and Georgia.
Diversity and inclusion
WINNER: Morgan, Lewis & Bockius
Jami McKeon, the firm’s chair, and Grace Speights, global leader of the labour and employment practice, created a forum called Mobilizing for Equality. This comprises 14 working groups to advocate racial equality. These groups focus on topics such as law enforcement policy, or assessing where the firm can have an impact through litigation or investment opportunities. Hundreds of lawyers are involved and each working group is held accountable by another separate group that measures progress.
The firm launched a 30-point action plan to improve diversity and inclusion, internally. It brought in education and training on tackling racism, a dashboard for tracking the diversity of legal teams, and a requirement to have at least one diverse interviewee for every non-partner role. In the aftermath of George Floyd’s murder in May 2020, the firm worked with a sociologist and expert in black trauma to create a dialogue with black lawyers.
The firm has launched a programme called GOOD Directors to increase diversity on the boards of public companies and to help people with no prior board experience to secure a position. The programme combines teaching with proactive measures to place participants on boards. The firm has created a network of venture capital and private equity firms that can help find positions for candidates in their portfolio companies or elsewhere in their network. Each candidate is mentored by a current board member.
The firm is the founding law firm partner of a new programme to increase diversity in law firm recruitment, created with the start-up Legal Innovators. Using data on what makes a successful candidate, the initiative encourages firms to find candidates from outside the top 14 US law schools, expanding to more than 35 universities. Potential candidates are also trained and mentored over a two-year period. As a result of this process, the firm has so far taken on seven new members of staff that it says it would otherwise not have identified.
Ropes & Gray
The firm has invested in improving gender equality through initiatives such as: mentoring women and ensuring access to business development opportunities; holding a roundtable for senior partners to share business development knowledge with young female partners; a flexible work programme; and development grants for women’s professional development. In the space of 18 months, four women have made partner while working flexibly.
WINNER: Latham & Watkins
The firm led a case on behalf of civil rights organisation the National Urban League against the Trump administration, to ensure the US census was counted fully in 2020, despite the pandemic. The plaintiffs argued that the government was accelerating the census process, which would lead to tens of millions of people being excluded from the count — disproportionately people of colour, low-income individuals, undocumented immigrants and people with disabilities. Through litigation, lawyers successfully ensured the count continued and worked with the census bureau and courts to ensure the data was accurately processed. Census data is used in several government decisions, including how to distribute $1.5tn in federal funding annually for education, healthcare, food and other needs.
The firm is working with several racial justice and civil liberties groups on a variety of initiatives in response to the Black Lives Matter movement. In one example, Akerman worked with the Law Enforcement Action Partnership to repeal a New York law that protected law enforcement disciplinary records from public disclosure. The firm has also partnered with the Louisiana branch of the American Civil Liberties Union on a litigation campaign to bring up to 1,000 cases in Louisiana challenging racially motivated stops and seizures by authorities.
Arnold & Porter
In 2020, the firm entered into a strategic partnership with racial justice non-profit The Advancement Project, in a bid to make the firm’s investment in racial justice initiatives more impactful. So far, the partnership has focused its efforts on three voting rights cases and two amicus briefs — legal documents filed by non-litigants with a strong interest in the subject — in education rights cases. One of the voting rights cases ended in a favourable settlement in which Florida committed to improve mail-in voting and enhance the safety of in-person voting. One amicus brief challenges the expansion of school authorities off campus, which the firm argues would disproportionately affect black students.
Cravath, Swaine & Moore
Of the 1,000 people employed in 1974 by the police and fire departments in Jefferson County, Alabama, none were women and only one was African American. Private plaintiffs and the National Association for the Advancement of Colored People, a civil rights organisation, sued the county, alleging discrimination by government employers, and signed a consent decree that promised to remedy the situation. The decree was challenged as reverse discrimination and the dispute went to the Supreme Court, from which point Cravath led the case. Despite an adverse ruling, over a 37-year period the firm continued to fight the reverse discrimination suits and worked closely with the courts to oversee hiring practices in the county. The firm says the county now has more even numbers of African American and white police and firefighters, and the consent decree was finally lifted last year.
Crowell & Moring
In the aftermath of the killing of George Floyd in May 2020, the firm formed a racial justice pro bono task force to focus on cases involving police misconduct, incarceration and voting rights. In one example, the firm worked with racial justice non-profit The Advancement Project and a group focused on the rights of incarcerated people, Voice of the Experienced, to threaten a lawsuit against the Louisiana secretary of state. They challenged a law that effectively suspended voting rights for individuals with felony convictions sentenced only to probation. The threatened lawsuit helped secure a legislative fix, which restored the voting rights of more than 40,000 people in the state.
Kirkland & Ellis
In a case lasting a dozen years, the firm represented Maryland’s historically black colleges and universities (HBCUs) in a lawsuit against the state for failure to provide equitable funding and to dismantle remnants of its former segregated higher education system. The firm combined public advocacy with a media strategy to draw as much attention to the case as possible, achieving a $577m settlement. As a result, it is now easier for HBCUs in Maryland to obtain approval for new courses or expand existing programmes, and the firm has been contacted by HBCUs in other states.
Paul, Weiss, Rifkind, Wharton & Garrison
In an ongoing case to hold the US far-right Proud Boys group responsible for an attack on a historically black church in Washington DC, the firm’s data team built an open-source list of social media groups and payment app accounts linked to the group. By overlaying data from these sources, the firm was able to identify key defendants and witnesses.
It is one of several cases the firm has filed in a strategy to challenge racist movements.