State Bar of Wisconsin sued over diversity program in new federal lawsuit (UPDATE)

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A federal lawsuit over a State Bar of Wisconsin diversity program was filed in the Eastern District of Wisconsin on Wednesday morning, according to court documents obtained by the Wisconsin Law Journal.

The Wisconsin Institute for Law & Liberty (WILL) argues the State Bar of Wisconsin’s promotion of alleged discriminatory DEI practices, including its flagship “Diversity Clerkship Program,” is unconstitutional because it discriminates on the basis of race, an issue that has come into the spotlight in the wake of a U.S. Supreme Court ruling last summer.

In its lawsuit, WILL argues the State Bar of Wisconsin requiring attorneys to fund DEI is unconstitutional, just as the U.S. Supreme Court recently ruled the same is true prohibiting affirmative action in college admissions at the University of North Carolina and Harvard.

“One of the inherent ironies of DEI, in its push to create a more inclusive community, ends up excluding people,” said plaintiff and Attorney Daniel Suhr during an interview with the Wisconsin Law Journal on Tuesday. “In a push for inclusion based on race, it ends up excluding people that come from a different race, religious background or different point of view.”

In a 2022 report, The Anti-Defamation League said, “Jews are being excluded from DEI strategies, despite facing growing rates of antisemitism in the workplace and beyond.”

Suhr, who is represented by WILL’s legal team, agreed.

“All we do is create winners and losers based on the people we do and don’t like. Some races are privileged, and others are excluded. Being Jewish is a minority, but it’s not one of the attributes being preferred by these programs,” Suhr said.

The State Bar member dues-funded program features exclusive legal internship opportunities to only some minority law students or those who self-identify as LGBTQ+, the lawsuit contends.

Larry J. Martin, executive director of the State Bar of Wisconsin, defended the program.

“The State Bar of Wisconsin’s Diversity Clerkship Program is designed to assist first-year law students who attend the University of Wisconsin or Marquette University law schools by creating opportunities for introductions to private law firms, corporate legal departments, and governmental agencies that participate in the program,” Martin said in a statement. “Neither race nor ethnicity is an eligibility factor or requirement for purposes of participation.

“The State Bar is now aware of a lawsuit filed against the State Bar, targeting the Diversity Clerkship Program and other State Bar activities,” Martin added. “The State Bar will vigorously defend the Diversity Clerkship Program, as the organization has long considered the program an important tool to support Wisconsin law school students.”

Plaintiff’s counsel further argues attorneys have a role and responsibility to uphold the rule of law and need to remember the oath they have taken to defend the constitution of the United States. Attorneys for WILL say the State Bar is in violation of the First and 14th Amendments, as well as 42 U.S.C. § 1983.

“The State Bar of Wisconsin’s DEI program is illegal because we all have a right to be treated as individuals,” Suhr said, noting how the internship rules have a similar standard.

“The State Bar’s attitude of how much we can get away with is the wrong attitude. The point of this lawsuit is you can’t get away with this any longer. You have to follow the constitution,” Suhr said.

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In taking issue with State Bar of Wisconsin’s mandatory membership requirement, Suhr noted more than a dozen other states stopped requiring attorneys to join as a result of litigation.

“I’ve always been an opponent of mandatory bar membership. Free speech and association are core First Amendment values,” said Suhr.

Suhr asked why should Wisconsin lawyers be forced to subsidize the speech of this trade association?

Courts have said the role of the State Bar is to improve legal services and regulate the profession. Noting the uniqueness of Wisconsin’s legal system, Suhr said the State Bar doesn’t regulate attorney conduct and is now side-tracked with DEI and marketing rather than prioritizing moving the profession forward as prescribed by the courts.

“Regulation is the job of OLR, the office of lawyer regulation, the State Bar doesn’t even do that,” Suhr noted.

“Really, the State Bar’s only role is what the Supreme Court has said is to improve quality of legal services,” Suhr added.

“I really don’t think the State Bar speaking about political and culture issues or marketing products checks off any of the boxes that the Supreme Court has drawn,” Suhr said.

Court documents provided several examples of his argument.

Suhr said there is bipartisan support from both liberals and conservatives to get rid of a mandatory bar requirement across the nation.

“Black and Douglas, two liberals, civil liberties champions, worried about the civil liberties implication of coercing lawyers to be involved with organizations they don’t agree with,” he said.

Not fair to Wisconsin Lawyers?

“One of the things that’s so frustrating is how unique the State Bar of Wisconsin is in comparison to other professions. If you’re a doctor you don’t have to join medical society, it’s private trade association. There is only a fee paid to the examining board.  The same is true for dentists, engineers and every other professional in the state of Wisconsin who is licensed, except lawyers,” Suhr said.

“We (lawyers) we are compelled by the law to subsidize an organization we don’t want to join. That organization uses our money to do things blatantly contradictory to our values. And there is nothing we can do about if we want to continue practicing in our profession in Wisconsin” he noted.

“There is a better way. It doesn’t have to be this way. We can respect people’s First Amendment rights and still protect consumers from unethical behavior,” Suhr added.

Additionally, according to court documents, the State Bar of Wisconsin is allegedly violating Wisconsin attorneys First Amendment right to free speech under Keller v. State Bar of California, in which the United States Supreme Court held that an association like the bar cannot compel an objecting member to fund activities that are not “germane” to a constitutionally permissible justification for mandatory membership. 496 U.S. 1, 13–14 (1990).

The lawsuit further argues the State Bar of Wisconsin engages in several other non-germane activities to which the plaintiff objects.

“Like the program, some of these activities include divisive rhetoric. For example, the bar lambasts police on its website, claiming that “[b]lack Americans suffer from police brutality . . . caused by systemic racism . . . that is ingrained in our legal system. . . . This is unacceptable. Black Lives Matter.” Ex. 7:1.[1] Plaintiff does not want to help spread or be associated with this speech,” Court documents state.

Some of the named defendants in the lawsuit include:

• Dean Dietrich – president State Bar of Wisconsin
• Jane Ellen Bucher – president-elect
• Margaret Wrenn Hickey – past-president
• Frances Coyer Munoz – secretary
• Deanne M. Koll – treasurer
• Joseph Cardamone III – chairperson of the Bar Board of Governors
• Larry Martin –  executive director

The lawsuit also contends that minority law students disclosed their status on their law school entrance personal statements, which was later illegally used to get preferential treatment during internship selection, as it was reviewed on interview evaluation forms.

“The program discriminates against law students based on unlawful classifications, thereby violating those students’ rights secured by the Equal Protection Clause of the 14th Amendment. Plaintiff cannot be compelled to support an unconstitutional program,” counsel argues in court documents.

WILL Associate Counsel Skylar Croy said, “When the government discriminates based on race, it sows more division in our country and violates the Constitution in the process. WILL is standing up against discrimination and holding the State Bar accountable to the rights of its due-paying members.”

WILL and Croy represent Suhr, who said no one should receive preferential treatment.

“Internships are competitive — as they should be. But when one group is given preferential treatment over the other to apply for these programs, the programs lose competitiveness and hurt all Americans. This also goes against my beliefs entirely. The State Bar should do better and expand these opportunities to all Wisconsin law students,” Suhr said.

According to court documents, State Bar dues allegedly illegally fund the minority favored internship. Legally, according to court documents, the internship should be open to everyone, regardless of one’s race or sexual orientation.

More than 600 law students have secured paid internships since the program’s inception.

Croy said he believes since the program’s inception in 1993, the State Bar has strayed from its original intention.

“To give the bar credit, at least when this was started there were good intentions, but even good intentions don’t lead to good outcomes,” he said.

The current DEI programs and communications efforts discriminate against the plaintiff and hundreds of other Wisconsin attorneys, court documents allege.

Reverse Discrimination?

Quoting former U.S. Supreme Court Justice Antonin Gregory Scalia, “We are all one race here, we are all Americans,” Suhr said are words that should ring true today.

“Pursuing of DEI agenda is about marking people off, treating people differently. There are equally students who are denied career opportunities because of race. I think it’s unconstitutional and I think it’s just wrong,” he added.

“As a lawyer I should not be forced to subsidize an unconstitutional program that is contrary to my beliefs and values. I believe that fundamentally the 14^th Amendment was drafted to move us toward a color-blind society. From the government’s perspective in particular, it is both good policy and constitutionally the right thing to do to treat people equally regardless of race,” Suhr said.

During interviews with the Wisconsin Law Journal on Tuesday, both Suhr and Croy noted some of Wisconsin’s largest law firms, companies and government agencies participate in the “Diversity Clerkship Program,” program, including Froedtert Health and the Kohler Co.

“Some employers are using this as a way to engage in illegal affirmative action employment practices,” Croy said, noting he is not suing any of the companies.

“We’re not suing any of these companies. We are suing the State Bar of Wisconsin because they are the ones who facilitate and administer the program. They are the ones violating our civil rights,” Croy added.

Both companies have also been in the news for other reasons.

As previously reported by the Wisconsin Law Journal, Froedtert made headlines over the summer after the death of woman discharged from Froedtert ER highlighted a major gap in Wisconsin’s medical malpractice laws.

Also as recently reported by the Wisconsin Law Journal, the Wisconsin Court of Appeals upheld the lower court’s decision to deny Kohler Co. a wetland permit to build the company’s sixth golf course on sacred Native American burial land that would also have had a widespread environmental impact.

In the current matter before the court, WILL argues in court documents that, “Using the funds of due-paying members to provide invaluable internship experiences to only some law students is a violation of the Constitution and the recent precedent set in Students for Fair Admissions v. Harvard. Judge Carl Ashley, who has promoted the program on behalf of the bar, stated that he was aware diversity programs like Diversity Clerkship Program could face legal challenges,” WILL officials noted.

According to Croy, some minorities who were initially supportive of DEI initiatives have since changed their position.

“University of Wisconsin Law School even received complaints from minority law students, they were coerced and pigeonholed,” Croy said.

“They were offended by this. They complained they were being asked different questions,” he added, noting, “We believe that people are supposed be judged based on their merit and their ability to solve problems. When you have programs that are handing out employment opportunities at critical stages, it’s a pretty big deal to get a paid internship, not based on merit, but based on protected traits, it is troubling,” he added.

As far as the best possible outcome for the case, WILL attorneys said they hope the court compel the State Bar of Wisconsin to end its alleged discriminatory program, or not allocate mandatory bar members’ dues to the program, or not require mandatory bar membership in Wisconsin.

The lawsuit is part of WILL’s nationwide Equality Under the Law Project. Since 2021, WILL attorneys have represented 53 clients in 18 states. All clients are represented pro bono. Click here to learn more.