Federal Judge Oral Argument Orders Challenges as Sex and Race Discrimination

Those monitoring DEI challenges can now add one more battleground to their list: the federal judiciary. On January 25, 2024, America First Legal filed a judicial conduct complaint against three federal judges on the U.S. District Court for the Southern District of Illinois, Chief Judge Nancy J. Rosenstengel, Judge Staci M. Yandle, and Judge David W. Dugan. Specifically, the complaint takes issue with the judges’ standing orders intended to provide newer, female and minority attorneys with additional opportunities for oral argument. As it relates to DEI, the complaint alleges that the standing orders constitute race and sex discrimination.

The Standing Orders

All three standing orders are virtually identical. They allow litigants to take two steps as it relates to a pending motion before any of the judges:

1. Alert the judges that, if oral argument related to a motion is granted, a newer, female or minority attorney will argue the motion.
2.  If litigants alert judges to this information, the judges will grant the request for oral argument “if it is at all practicable to do so” and “strongly consider” allocating additional oral argument time to the newer, female or minority attorney (Judge Yandle’s order does not extend this additional time to “newer” attorneys, but possibly as an omission given the other identical language.)

The judges’ justification for this procedure: “the importance of the development of future generations of practitioners through courtroom opportunities,” particularly for newer attorneys and those who are women and underrepresented minorities.

Race and Sex Discrimination Claim

Race Discrimination

America First Legal argues that the judges’ standing orders unconstitutionally discriminate based on race and sex. First, with respect to race, America First Legal argues that the orders fail to pass strict scrutiny, the legal test for determining whether race-based discrimination is permissible under the Constitution. To pass this test, a discriminatory practice must be narrowly tailored to serve a compelling government interest. American First Legal, relying on the Students’ for Fair Admissions Supreme Court case ruling affirmative action unconstitutional, asserts that there are only two compelling government interests that allow race-based discrimination: remediation of specifically identified instances of past unlawful discrimination and avoidance of imminent safety risks in prison. America First Legal argues that neither are present to justify the judges’ standing orders. They also argue that the standing orders are not narrowly tailored to achieve its goal of developing future generations of lawyers; despite their goal of trying to provide increased opportunities for oral argument, the standing orders, according to America First Legal, in fact limit opportunities for non-minority attorneys.

Sex Discrimination

Second, with respect to sex discrimination, America First Legal argues that the orders fail intermediate scrutiny, the legal test that must be passed for permissible sex-based discrimination. They argue that the orders do not advance an “exceedingly persuasive justification” in that the judges have not established that female lawyers in fact receive fewer oral argument opportunities than male attorneys because of their sex.

Ultimately, America First Legal argues that the judges’ orders are impermissible because they would lead a reasonable member of the American public to “lose faith in the judiciary on learning that a judge believes members of certain races and sexes are more deserving of court time than members of other races and sexes.”

Employer Takeaways

The America First Legal complaint underscores that the Supreme Court’s SFFA decision ruling affirmative action unconstitutional will continue to be leveraged for other types of DEI-related challenges. The complaint also has implications for workplace practices in that it demonstrates that DEI efforts and measures involving recruitment, hiring, promotion, and professional development efforts, designed primarily to increase access and opportunity to underrepresented groups, could be viewed as discriminatory based on sex, race or other characteristics. Employers that implement such efforts should continue to be mindful of language they use to communicate the purpose of these initiatives and be prepared to consult with legal consult if and when they are challenged.