Most—if not all—of the nation's leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.
But these preferences are at best a mixed blessing—and are often a curse—for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."
These problems plague minority lawyers precisely because of the racial preferences that got most of them hired. By lowering the big firms' usual hiring standards, large preferences bring "disparities in expectations and performance that ultimately hurt the intended beneficiaries."
These are among the conclusions copiously documented by Richard Sander, a UCLA law professor, in a 66-page article soon to be published in the North Carolina Law Review. It is laden with meticulous statistical analyses of six publicly available data sets, including surveys of thousands of law students and lawyers at various stages in their lives and careers.
Sander's blockbuster article, "The Racial Paradox of the Corporate Law Firm," rejects the conventional wisdom that racism explains why most young black lawyers in large firms do not fare well, and why barely 1 percent of big-firm partners—compared with 8 percent of new hires—are black.
The paradox, Sander says, is that "aggressive racial preferences at the law-school and law-firm level tend to undermine in some ways the careers of young attorneys and ... contribute to ... the failure of the underlying goal of this whole process—the integration of elite firms at the partnership level."
Sander's analysis is a natural sequel to his stunning 115-page Stanford Law Review article in 2004 showing how the enormous racial preferences used by all selective law schools backfire against black students.
By producing huge black-white gaps in entering academic credentials, these preferences ensure that black students are clustered near the bottom of their classes, with only 8 percent ranking in the top half. This in turn explains why more than 43 percent of entering black law students never become lawyers. (See my December 4, 2004, column, "Do Racial Preferences Reduce the Number of Black Lawyers?")
Many a professor has attacked Sander's controversial 2004 analysis, but none has convincingly refuted it. And although the North Carolina Law Review twins Sander's latest article with a skillfully argued, 17-page, pro-preference rebuttal by Duke law professors James Coleman and Mitu Galati, its ultimate unpersuasiveness reinforces my confidence in Sander's analysis.
Common sense tells those of us whose eyes are open that the pattern documented by Sander in the limited contexts of law schools and large firms also exists in college and other walks of life (although the scholarly Sander makes no such claim). Many capable African-Americans experience frustration and failure because racial preferences thrust them into elite settings where they compete against whites with far better qualifications. The root of the problem, of course, is that stunningly small percentages of blacks emerge from high school with strong academic skills.
Even though blacks make up only 1 or 2 percent of law students with high grades, they make up 8 percent of large law firm hires. One survey shows that at least 46 percent of black lawyers at large firms (compared with 14 percent of whites) had law school GPAs below 3.25. Fifty-six percent of these black lawyers admitted thinking that their race or ethnicity had been relatively important in winning them job offers.
Sander shows that large law firms pay very high salaries to attract the people with the highest law school grades. And available data bear out the firms' belief that these grades measure important skills.
To be sure, many outstanding lawyers did not have high grades. And many failures did. And skills such as jury appeal have little to do with grades. But very few big-firm lawyers appear before juries. And on average, Sander shows, law school grades measure "skills or qualities that continue to be relevant to effective performance throughout a legal career."
Surveys of University of Michigan Law School alumni, for example, find that those "with higher GPAs are more likely to survive the large-firm competition for partnerships" and earn more money.
Why? Surveys belie the views of some analysts that minority law students are less interested in corporate law firms than whites, Sander reports. Rather, the most plausible explanation is that although firms make collective decisions to use hiring preferences, the individual partners who dole out plum assignments have "an overwhelming incentive" to choose those perceived to be most able and "to shun those whom the attorney thinks for any reason may not be up to the job."
Why would the same firms that use aggressive racial preferences to bring in minorities then turn around and discriminate against them? And why, if the firms are racist, are there virtually no complaints of discrimination in pay, hours of work, or overt treatment?
It's also telling that young blacks at firms with fewer than 50 lawyers—firms that do not use large racial preferences, the data show—report far, far fewer problems. There is no reason to suppose that these firms are more enlightened. The most plausible explanation, Sander shows, is that they hire minority lawyers who are well qualified for their jobs and whose work shows it.
To be sure, some big-firm partners may well be twisted by racial animus, Sander says. But probably not very many. And it would not be hard for minority associates to find out who those partners are and avoid them.
On the other hand, Sander admits, it is "extraordinarily difficult" to sort out how much of the unhappy experience of black associates at large firms is due to individual skill deficiencies and how much is due to what scholars call "stereotype discrimination."
Some individual black associates "are entirely able to perform as well or better than white associates," Sander says. But even these associates may get inferior training and assignments if—as seems likely—the "merit gap [is] reinforced and unfairly extended through stereotyping generalizations" about racial groups. (Sander himself, by the way, has a half-black son and is no conservative.)
Such racial stereotyping is deplorable. But the main reason for its persistence is not white racism. It is the conspicuous use of large racial preferences. They advertise the assumption that minority lawyers (and others) cannot compete on their own merits, and they thrust them into high-level competitions that most are doomed to lose.
This tragedy will continue until we do a far better job of educating minority children. In the meantime, unless our large law firms, law schools, and other elite institutions moderate their racial double standards, they will continue to hurt many of the people they claim to be helping.
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