Tipsheet

Here's Why the Wisconsin State Bar Is Being Sued

Mia Cathell
Mia Cathell  |  December 20, 2023 12:30 PM

The State Bar of Wisconsin is being sued for promoting discriminatory DEI practices based on race and sexual orientation.

Wisconsin Institute for Law and Liberty (WILL) launched a lawsuit Wednesday against the Wisconsin State Bar on behalf of a State Bar member who is compelled to pay mandatory membership dues that functionally fund DEI programming he argues unfairly discriminates against him as well as thousands of Wisconsin attorneys on the basis of racial and sexual identity.

Specifically, the State Bar of Wisconsin's "Diversity Clerkship Program" offers exclusive internship opportunities—ones that should be open to everyone, WILL's client says—only to certain minority law students or those who self-identify as LGBTQ+. Some of Wisconsin's largest law firms and government agencies participate in the race- and sexuality-based Diversity Clerkship Program, including the ACLU of Wisconsin, the Milwaukee City Attorney's Office, and the Wisconsin Department of Justice.

The application itself requires prospects to submit personal statements, "an extremely important factor" in the "race-based selection criteria," detailing how they "contributed to diversity" and have "demonstrat[ed] their commitment to diversity."

Here are excerpts from the application pool's testimonies during the program's 2022 to 2023 application cycle (via WILL):

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  • "I am a queer, fat woman."
  • "I have endured as a Hmong American."
  • "I appear Hispanic."
  • "I think people are often shocked when I, a black woman, tell them I am interested in environmental science."
  • "I am a young [b]lack man from the South Side of Chicago."
  • "As a mixed White and Mexican, bisexual woman in a white, Catholic suburb of Milwaukee, WI, I quickly learned that advocacy often only went so far."
  • "As a first-generation Mexican American, I have benefited from the courageous journey that my parents undertook."
  • "Being [b]iracial has been one of the most influential and amazing forces in my life."
  • "My changing relationship with the word gay is representative of the journey I took to embrace my identity as a gay man."
  • "As a queer woman, I have learned that I am allowed to exist in a space that has traditionally not welcomed my presence."

As the eligibility requirements stipulate, the 10-week paid summer employment is for first-year Marquette University Law School and University of Wisconsin Law School students "with backgrounds that have been historically excluded from the legal field."

According to WILL, public records reveal that an assistant at Dane County Corporation Counsel, a participating employer, said: "[O]ur goal is less about finding the perfect fit for us, but more about raising our profile among potential minority candidates."

The assistant mentioned presenting to the black, Latino, indigenous, and Asian student groups at the University of Wisconsin Law School, whose website proudly touts: "Our commitment to students of color can be seen in our numbers [...] We have graduated more than 1,500 students of color [...] Students of color currently make up more than 20 percent of our student body."

Via the 49-page complaint filed in the U.S. District Court for the Eastern District of Wisconsin, WILL asserts that using the funds of due-paying State Bar members to provide invaluable internship experiences exclusively to a subset of law students is a violation of the Constitution. The court document cites the precedent set in Students for Fair Admissions v. Harvard, the landmark U.S. Supreme Court decision that held that race-based discrimination (a.k.a. "affirmative action") in the college admissions process violates the Fourteenth Amendment's Equal Protection Clause. Consequently, the Harvard case has changed the legal landscape, establishing an avenue for WILL to challenge the Wisconsin State Bar's practices on constitutional grounds.

In accordance, it is constitutionally mandated that educational and employment opportunities "must be made available to all on equal terms" and "shall be the same for the blacks as the whites," meaning the "colorblind" treatment of all applicants in America.

WILL cites a YouTube video posted to the State Bar of Wisconsin's channel nearly a decade ago, in which Milwaukee County's chief judge Carl Ashley, then-chair of the association's Diversity Task Force, even acknowledged he was well aware that the Diversity Clerkship Program could face legal challenges for "isolating" and "excluding" others, as the chairman admitted it does.

"I'll have to tell you in all candor that there is concern and has been concern voiced about the legal repercussions for isolating people—minorities [sic]—at the exclusion of others and the potential lawsuits associated with that. We understand that [...] We're gonna take a look at the more recent law, but most of us are pretty convinced it's not gotten any less problematic over time."

WILL additionally argues that the program "advocates for supplanting equal opportunity with equal outcome" and "violates the free speech rights of students by discriminating against those who will not profess a commitment to this [DEI] ideology."

WILL's client and plaintiff Daniel Suhr, a trial and appellate attorney in Wisconsin, stated in a press release shared with Townhall: "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."

Created by the state's Supreme Court, the Wisconsin State Bar is a mandatory professional association. Any attorney holding a Wisconsin law license must be a member of the State Bar and pay hundreds of dollars each year as part of its membership fees.

If a member refuses to pay, the State Bar can automatically suspend him as a penalty and declare him "delinquent;" an attorney cannot practice law while suspended. Suhr, objecting to his yearly State Bar dues being used to administer the "unconstitutional" DEI program, added: "The State Bar should do better and expand these opportunities to all Wisconsin law students."

"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 associate counsel Skylar Croy—representing Suhr, a constitutional conservative, in the civil suit—commented.

Earlier in December, the State Bar of Wisconsin hosted a speaker at an event who publicly complained about "white men" mostly comprising the local judiciary. At the association's 2023 Diversity Counsel Program organized by the State Bar's Diversity and Inclusion Oversight Committee, Rock County Circuit Court Judge Ashley Morse moderated a Dec. 4 panel on "closing the diversity leadership gap." There, she recalled seeing photographs of judges lining the Rock County courthouse's hallway when she first headed to her chambers. "It's a row of white men that goes from one end to the other," complained Morse, the "first woman of color" to serve as a judge in Rock County. That's why she displays "a variety of diverse images" in her courtroom.

Also present during the discussion, the applauded State Bar leader Abigail Churchill said that employers should ask themselves: "How many board members of color do we have? How many board members who identify as LGTBQIA+ do we have?" Since 2016, Churchill has been hosting quarterly name- and gender-marker change clinics as the founder of Trans Law Help Wisconsin, a pro-bono project focused on aiding "transgender and non-binary" Wisconsinites. In 2018, she was awarded the Legal Innovators Award by the State Bar of Wisconsin, an annual prize that honors champions of "diversity and inclusion."

Also of note, the Wisconsin State Bar is a vocal Black Lives Matter advocate. During the violent 2020 BLM-Antifa riots, the association tweeted that black people "suffer from police brutality and crippling fear caused by systemic racism and implicit bias" that are supposedly "ingrained [in] our legal system, law enforcement institutions, and countless other facets of American life."

Accordingly, the State Bar's leadership released a statement on "Racial Equity of Black Americans" outlining how the association will "step up" its efforts to "combat racial injustice & disparities, advance equal justice, and promote diversity and inclusion," such as lobbying for bail reform, a policy position the State Bar holds that supports restricting the use of cash bail in pre-trial release.

"Many of us cannot fathom the pain that the Black community experiences daily [...] Many of us don’t know what it's like to live in fear for our lives due to the color of our skin..." reads the memo co-authored by State Bar president Jill Kastner, president-elect Kathleen Brost, incoming president-elect Cheryl Daniels, past president Christopher Rogers, and executive director Larry Martin.

Published in the June 2020 issue of the State Bar's biweekly newsletter "WisBar InsideTrack," the memorandum urged the association's 25,000-plus attorneys to "play a stronger role in this national awakening" as "stewards of the rule of law."

"[W]e stand with Black Lives Matter protesters demanding change in our justice system," the State Bar's leaders proclaimed.