Where Were the Lawyers?

In many cases, they were approving disastrous DEI programs.

As accounts of highly questionable anti-racism and Diversity, Equity, and Inclusion programs have emerged over the years, a commonly heard question in my business and social circles has been “Where were the lawyers?”

Not surprisingly, many of those asking that question have been lawyers who are more than familiar with how DEI and anti-racism training can actually harm civil rights via two major sins: abandoning equal opportunity for equal result (which can lead to hiring and selection quotas) and emphasizing the monitoring of attitudes as opposed to conduct (which can foster a privacy-violating and accusatory version of the thought police).

The mystery over the seeming absence of the lawyers stems from decades of experience in which lawyers provided both sound advice and much-needed restraint. To put it bluntly, they served as important speed bumps or even brick walls whenever questionable ideas were surfaced in board meetings and corner offices.

Although people may groan about the legal team’s version of quality control, the role of Frequent Dissenter is far less of a threat to organizations than its jolly old counterpart, Rapid Agreement.

In my experience, the same people who gripe about the lawyer’s probing often rely upon it. When a chief executive officer gets excited about a program or course of action, any trepidations about its potential downsides are frequently accompanied by a silent nervousness. In many, but not all organizations, the inner circle has a large share of lean and hungry careerists; i.e., people whose ambition makes them reluctant to raise objections lest they lose their reputation as a team-player.

Their hope is that the CEO’s enthusiasm will be dampened by the professional dissenters, a.k.a. the lawyers. As the high priests of an arcane subject, the lawyers are peerless and have a particular form of clout. If an eager CEO were to say, “All of our competitors and peers are adopting DEI programs, why can’t we?” you’d expect that enthusiasm to be countered with recitations of why it is wiser to stick with a no-nonsense Equal Employment Opportunity program - the type that Congress had in mind when the 1964 Civil Rights Act was passed.

Those of you who recall those challenging days when passage of civil rights legislation required coalition-building and clever strategies will know that quotas were specifically denounced by the law’s backers during the Senate debates. The law was designed to deal with conduct, not attitudes, and to squelch discrimination, not racism. Any legislation resembling today’s DEI programs would not have made it out of a committee of civil rights supporters.

With that in mind, it is difficult to read about divisive diversity workshops, hiring quotas, a blacks-only academic program, or an employer confessing to systemic racism without asking, “Where were the lawyers?”

Notice how people rarely ask, “Where were the Human Resources professionals?” In far too many instances, HR has become a timid accomplice to DEI. But let’s cut HR some slack. It’s a rare situation where even the most eloquent HR officers can override any serious opposition from the lawyers.

The idea that the CEOs suddenly became woke DEI enthusiasts who boldly overruled the advice of legal counsel is tempting but not plausible. They, like HR, are usually deferential to legal advice, especially if litigation is a possibility.

And if the lawyers were not blocking DEI, it is unlikely that was because they had suddenly become potted plants. We need to consider the possibility that, at some point, the traditional voices of caution were transformed into the demands of activists.

There are signs that the recent crop of legal counselors has become more ideologically driven. The news stories about prestigious law schools, such as Stanford and Yale, are merely the most open demonstrations that freedom of expression and equal opportunity have been nudged aside in some quarters by a new school of thought. It is reasonable to conclude that such “new schools” have been operating for years.

After reviewing the websites of major law firms and seeing how many have adopted DEI programs, it’s difficult to avoid the suspicion that perhaps the CEOs, the HR pros, and the senior law partners weren’t the primary source of the DEI trend.

The old law school grads, regardless of any liberal, moderate, and conservative bents, favored caution, especially if there was a serious risk of litigation. The new breed may be far more inclined to adopt an activist’s contempt for the system. The modern law schools have not been bastions of viewpoint diversity. To use an old intelligence officer’s expression, if we “walk the cat back” we may find a group of law professors.

Regardless of the source, CEOs should recognize that now, more than ever, there is a need to explore the overriding legal philosophy of their in-house and external legal counsel. In our times, you can see widely differing legal opinions by contrasting Justices Clarence Thomas and Samuel Alito with Justices Sonia Sotomayor and Ketanji Brown Jackson.

But when it comes to DEI, quotas, and divisive diversity programs, the times they are a-changing.