Wisconsin State Bar settlement reshapes definition of ‘diversity’
Deal with Wisconsin Institute for Law and Liberty changes definition and practices of diversity within the legal profession | New definition includes people with ‘differing characteristics, beliefs and viewpoints’ | Resolves lawsuit challenging ‘discriminatory practices’ in the Bar's internship programme.
The State Bar of Wisconsin has agreed to modify the definition of ‘diversity’ as part of a settlement in a federal lawsuit.
The Wisconsin Institute for Law and Liberty (WILL) and the State Bar of Wisconsin settled on April 4, 2024, in a dispute over the Bar’s internship programme that WILL said unlawfully favoured or disadvantaged individuals based on their race.
It comes after the US Supreme Court held in June that race-based affirmative action programmes in US colleges fall foul of the US Constitution.
In the cases, Students for Fair Admissions v University of North Carolina and Students for Fair Admissions v Harvard University, the US’ highest court found that race-based affirmative action programmes in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment.
According to David Glasgow, executive director, Meltzer Center for Diversity, Inclusion, and Belonging, Adjunct Professor of Law, New York University School of Law, the US legal landscape is witnessing a battle “between two competing views”.
“One is a view that says we need to pretend we can’t see colour and treat efforts to address racial inequality as equivalent to efforts to entrench it.
“The other is a view that recognises that we do not yet live in a just and equal society, and that institutions need to adopt proactive measures to correct bias in the system.
“In recent months and years, we have seen a sustained political and legal attack on D&I, which is part of a broader backlash to the surge of D&I activity after the murder of George Floyd in 2020.
“The US Supreme Court’s decision in June 2023, which effectively ended the practice of race-conscious admissions in higher education, is a critical component of those attacks."
This month’s settlement in Wisconsin ended what had been deemed discriminatory Diversity, Equity, and Inclusion (DEI) practices within the State Bar, reshaping the definition of "diversity" and ensuring that all law students, regardless of their backgrounds, will have equal access to the Diversity Clerkship Program.
Commenting on the win, the plaintiff, Daniel Suhr explained that “premier internship opportunities should be available to students based on merit—not race”.
He added that he was proud to be working with WILL “to set a strong precedent for the next generation of law students”.
Diversity definition
Previously, the Bar's definition included a wide range of demographic characteristics, defining it as “an inclusive concept that encompasses, among other things, race, ethnicity, national origin, religion, gender, gender identity, age, sexual orientation and disability”.
However, the settlement introduces a new definition, whereby ‘diversity’ means “including people with differing characteristics, beliefs, experiences, interests, and viewpoints”.
Law students at the University of Wisconsin Law School welcomed the settlement, noting its potential to foster a more inclusive environment within the legal profession, rather than just meeting quotas based on race.
Victory will provide a ‘roadmap’ for the future
The settlement comes as a result of a legal challenge initiated by WILL, representing Suhr, a trial and appellate attorney in Wisconsin.
Suhr, like all attorneys in the state, is obligated to be a member of the Bar and pay annual dues.
He objected to his dues being used to fund what he perceived as an unlawful clerkship programme that discriminated based on race.
Under the terms of the settlement, the Diversity Clerkship Program will now be open to all first-year law students in good standing at Marquette University Law School or the University of Wisconsin Law School.
Additionally, promotional materials for the programme must explicitly state that eligibility is not contingent upon race or any other specific demographic characteristic.
Skylar Croy, associate counsel at WILL, said: “While we are pleased with this victory, we know the fight is far from over. In fact, this is only the beginning of a movement, and our lawsuit will provide a roadmap for future victories in all 50 states.”
Case background
Suhr first filed the suit in the US District Court for the Eastern District of Wisconsin in December 2023, challenging the constitutionality of the Diversity Clerkship Programme run by the State Bar of Wisconsin.
He brought the case against several officials of the State Bar in their official capacities.
The lawsuit argued that the Diversity Clerkship Programme, which aims to provide paid internship opportunities to law students, discriminates based on protected traits, primarily race.
Suhr alleged that the programme's eligibility requirements and selection processes violate the equal protection clause of the Fourteenth Amendment by favouring certain students over others based on their race.
The suit also contended that the programme is unconstitutional, citing a video where a state circuit court judge, Carl Ashley, who has endorsed the programme, acknowledged its potentially illegal nature.
Suhr argued that such affirmative action programmes in internships are as unconstitutional as those in student admissions.
Central to Suhr's complaint is the issue of mandatory funding—the State Bar requires its members to fund the Diversity Clerkship Program, among other activities, through membership dues.
Suhr, an objecting member, argued that this compulsion violates First Amendment rights, particularly freedom of speech and association.
Moreover, Suhr alleged that the Bar employs constitutionally inadequate dues-collecting procedures, hindering members' ability to opt-out of funding objectionable activities.
He claimed that the Bar's opaque categorisation of chargeable and non-chargeable activities prevents members from effectively exercising their rights.
In addition to the Diversity Clerkship Program, Suhr objected to other “non-germane” activities of the Bar, including what he perceived as divisive rhetoric against law enforcement.
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