Racial Justice & Anti-Discrimination

The 2023 Supreme Court term brought sweeping changes to the legal landscape in numerous areas, perhaps none more discussed than its decisions in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. By a 6–3 vote, the Supreme Court held that Harvard’s and the University of North Carolina’s use of race in their admissions processes violated the Equal Protection Clause and Title VI of the Civil Rights Act.

SFFA asked the Court to overrule precedent established in 2003, which permitted schools to consider an applicants’ race as a “‘plus’ factor . . . in the context of its individualized inquiry into the possible diversity contributions of all applicants.” Grutter v. Bollinger, 539 U.S. 306, 341 (2003). The Court did so, adopting a rule that colleges cannot consider applicants’ race in making admissions decisions. The Court’s opinion employed broad language against racial preferences, reasoning that “[e]liminating racial discrimination means eliminating all of it.”

Although the majority opinion did not explicitly modify existing law governing consideration of the race outside of the higher education context, or in the private sector generally, the decisions nevertheless have had broader strategic and atmospheric ramifications. In particular, the Court’s language in favor of race neutrality and harsh criticism of affirmative action in the college setting have accelerated the trend of reverse-discrimination claims against a wide array of other companies, organizations, and entities across the country. Conservative public-interest groups have sued venture capital funds, law firms, museums, military academies, nonprofits, financial institutions, and more, challenging race-conscious employment, funding, admission, and grantmaking decisions, as well as broader diversity, equity, and inclusion (“DEI”) efforts. Some have adjusted their practices to account for a heightened risk that robust DEI programs may face litigation from employees, contracting parties, advocacy groups, and government agencies.

Gibson Dunn quickly emerged as a leader in this space, organizing a DEI Task Force focused on helping our clients—both billable and pro bono—develop creative, practical, and lawful approaches to accomplish their DEI objectives in the wake of the SFFA decisions. Over the past nine months, the firm has represented clients in everything from full-scope litigation defense against federal court attacks to one-off advice and counsel sessions for small businesses and nonprofits, and everything in between. Gibson Dunn is proud to advise pro bono clients operating in this realm, including nonprofits seeking to advance educational equity for K-12 minority students, funding women’s human rights initiatives, and providing grants to low-income entrepreneurs, among many others.

The Fearless Foundation is a 501(c)(3) nonprofit that aims to increase access to capital for small businesses owned by women of color. Among other charitable endeavors, the Foundation awards a grant of $20,000 and one-on-one mentorship to small businesses owned by one or more Black women, who represent the fastest-growing entrepreneurial demographic in the United States but received just 0.13% of all venture-capital funding last year.

In August 2023, the American Alliance for Equal Rights filed a suit against the Foundation and sought a preliminary injunction to force the Foundation to make its charitable grants available to female entrepreneurs, regardless of race. The Alliance’s suit included a single claim brought under one of the nation’s oldest civil rights laws: 42 U.S.C. § 1981. Section 1981 was passed after the Civil War by the Reconstruction Congress to secure economic rights to formerly enslaved people, including the “same right” to make and enforce contracts “as is enjoyed by white citizens.” The Alliance made the unprecedented argument that this civil rights law, which was created to prohibit discrimination against the formerly enslaved, prevents the Foundation from providing grants designed to remedy the disparity in funding black women owned businesses, turning the Civil Rights law on its head.

The Foundation retained Gibson Dunn to serve as its lead counsel in the Alliance’s suit. Gibson Dunn filed a brief, three fact declarations, one expert declaration, and hundreds of pages of exhibits in opposition to the Alliance’s motion for a preliminary injunction. In its papers, Gibson Dunn argued that the motion failed for multiple reasons, including that a preliminary injunction would violate the Foundation’s First Amendment right to direct its charitable grants and mentorship to further its message of anti-discrimination and economic freedom. On September 26, after hearing oral argument from Gibson Dunn lawyers Jason Schwartz and Mylan Denerstein, Judge Thomas W. Thrash of the U.S. District Court for the Northern District of Georgia denied the Alliance’s preliminary injunction, adopting Gibson Dunn’s arguments that the First Amendment bars the Alliance’s section 1981 claim and that the Alliance failed to show irreparable injury.

The Alliance has appealed the denial of its motion for a preliminary injunction to the United States Court of Appeals for the Eleventh Circuit. Gibson Dunn represented the Foundation on appeal, including in oral argument held on January 31, 2024. The appeal is now pending before the Court.

In August 2022, our client and three friends—all of whom are Indian-American—enjoyed an evening out, catching up over dinner. While standing in the parking lot and saying their goodbyes in the Bengali language, a local woman approached the group, unprovoked, and began yelling racial slurs and ethnically charged profanities at the group. When our client and her friends tried to record this assault, the woman physically attacked them and threatened to shoot them if they did not turn off their phones, while simultaneously putting her hand in her purse as if to retrieve a gun. In that moment, our client feared for her life and the lives of her friends. Although police arrived on the scene, the attacker was not immediately arrested. She was later arrested but has yet to face any criminal charges.

In coordination with the Alliance for Asian American Justice, Gibson Dunn immediately jumped into action by drafting a petition on behalf of our client. Our client and her friends consolidated their cases, and all four victims are now seeking relief in civil court. In addition to seeking legal remedies, our client voiced a desire to create more awareness of racial hate incidents in the hopes of combating such disgraceful actions. Gibson Dunn continues to seek relief for her, supports her goal of deterring similar racially and ethnically motivated assaults in the future, and continues to work with the Alliance for Asian American Justice to provide legal assistance to those who have faced anti-Asian violence across the country, including in civil litigation on behalf of a family in Orange County, California, as well as clients in Baltimore, Maryland. Gibson Dunn proudly coordinates with the Alliance to connect those in need of pro bono representation with law firms all over the country, as well as to facilitate educational efforts, training, and identification of additional specialized services, including social services, mental health services, and other community support.

On November 6, 2023, Gibson Dunn, in partnership with the Anti-Defamation League, Hillel International, and the Louis D. Brandeis Center for Human Rights Under Law, launched the Campus Antisemitism Legal Line (CALL), a free legal protection helpline for students and professors on college campuses who have experienced antisemitic violence, hate, and discrimination.

CALL invites any student or professor who experiences an antisemitic incident on campus to submit an incident report at www.legal-protection.org. Anyone who submits an incident report will receive an intake call from a volunteer lawyer within 24 hours. After each call, the intake lawyer drafts a memorandum to summarize the incident and analyze its potential for legal action.

CALL has emerged as the national one-stop shop for incident reporting, with the Department of Education urging victims of antisemitism to file reports with CALL. In three months, CALL received nearly 400 complaints from students and professors across the country, the vast majority of which were handled by Gibson Dunn lawyers for intake. Gibson Dunn lawyers have also teamed up with in-house counsel from several corporate clients for those intake calls. And Gibson Dunn has trained dozens of lawyers at other law firms help with screening.

The CALL hotline team has been working around the clock to provide Jewish students and faculty on college campuses across the country with support and guidance in the face of rising threats and acts of antisemitism. The intakes received through CALL have revealed serious antisemitic incidents on campus, including physical assaults, threats, and discrimination in the classroom. In responding to the intakes, Gibson Dunn and its partner organizations have been able to offer support, guidance, and help to these victims.

In late 2023, a group of lawyers across the United States came together in a shared desire to promote inclusion in the legal industry and fight against Islamophobia and anti-Arab hate in the United States. Gibson Dunn helped form a nonprofit, the Alliance for Inclusion and Justice, which aims to bring together leading law firms to stand up against and educate on hate, bigotry, and discrimination affecting Arab and Muslim communities after the recent surge in anti-Arab and anti-Muslim bias and hate incidents across the country, and is a founding member of the Alliance.

The Alliance envisions a diverse, equitable, and inclusive legal profession that incorporates and respects the views and contributions of Arab and Muslim legal professionals, and is committed to fostering open dialogue and greater understanding in the legal community concerning issues related to anti-Arab and anti-Muslim hate. The Alliance will help provide resources for trainings and discussions on these topics, and will provide Alliance members access to a database listing pro bono opportunities from relevant organizations seeking legal support.

Gibson Dunn represented LatinoJustice PRLDEF, a national civil rights organization dedicated to advancing justice and equity for Latinx communities in the United States, in filing an amicus brief in support of a challenge to Florida’s Stop W.O.K.E. Act. Florida enacted the Stop W.O.K.E. Act in April 2022, prohibiting the teaching of certain concepts relating to race and sex, including that unconscious racial bias continues to exist in society. Plaintiffs challenged the law on First and Fourteenth Amendment grounds later that year.|

In the underlying litigation, the plaintiffs argued that the Stop W.O.K.E. Act was unconstitutionally vague and violated the First Amendment through viewpoint discrimination. A district court in Florida issued a preliminary injunction preventing enforcement of the law, which was then appealed to the Eleventh Circuit. Gibson Dunn filed an amicus brief before the Eleventh Circuit, arguing that the Stop W.O.K.E. Act would throttle academic freedom in higher education and prevent scholars and students from fully engaging in the study of Latinx culture and history.

The brief presented the voices and experiences of two students and four professors of Latinx culture and history in Florida, as they explained how the Stop W.O.K.E. Act would negatively impact their scholarship and ability to learn. The brief then analyzed how these students’ and professors’ experiences make clear that the Stop W.O.K.E. Act violates the free speech rights guaranteed to universities and professors in regulating higher education curriculum under binding Eleventh Circuit law. For example, the professors had canceled classes out of fear that they could no longer be taught, and they already had observed a chilling effect among students and faculty alike. And the students felt the quality of their education suffered as professors censored themselves to avoid running afoul of the law and students downplayed their Latinidad—leading them to consider completing their education out of state rather than in Florida under the Stop W.O.K.E. Act’s restrictions. Enforcement of the Stop W.O.K.E. Act currently is enjoined while the case is pending before the Eleventh Circuit.