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Getting to the Truth

Getting to the Truth

Legal scholars struggle to understand the impediments to minority success in large law firms.

By Ronald Roach

In recent years, corporate executives and local bar association officials have increasingly questioned why so few of the nation’s elite corporate law firms can claim significant racial and ethnic diversity among their partner or upper management ranks. Some organizations have even pledged to reward law firms that ensure high-level assignments for their minority attorneys and to penalize those firms that don’t.

In 2004, Roderick A. Palmore, the general counsel for Sara Lee Corp., and top officials at 100 major U.S. companies pledged to curtail or end arrangements with law firms “whose performance consistently evidences a lack of meaningful interest in being diverse.” Earlier this year, Wal-Mart Stores cut back its interactions with two law firms because of their lack of diversity. Sara Lee and Wal-Mart, as well as DuPont, General Motors and Shell Oil, have announced an initiative to boost the number of minority-owned law firms providing legal services for major corporations.

Not surprisingly, a number of law professors from some of the nation’s leading law schools have taken it upon themselves to examine why the leadership ranks of large corporate law firms remain essentially a White men’s club.

In 2005, non-White attorneys made up only 4.6 percent of partners at the nation’s largest law firms, according to the National Association for Law Placement. Black and Hispanic attorneys each accounted for less than 1 percent of partners in these firms,
experts say.

“Small firms are still quite segregated, but most people don’t see this as a problem,” says Dr. John M. Conley, a law professor at the University of North Carolina. “The controversy comes with the larger firms, especially the large elite ones that pay the highest salaries. They’ve done better at the entry level, but at the partnership level minority representation continues to be abysmal.

“Large law firms would like to do better. They’re getting pressure from their corporate clients. The clients are much more diverse than the law firms,” he continues.

Harvard University Law School professor David B. Wilkins, a leading researcher on U.S. law firm culture, says great lawyers are made, not born.

“Law practice is not tightly correlated with what is taught in law schools. In fact, it’s quite the contrary,” he says. “We do a pretty good job of teaching people how to think like lawyers. We teach them almost nothing about how to become a lawyer. That is something they have to learn on the job. And they learn that by being developed and by being invested in by people who already know how to do it.”

The question of diversity in the upper echelons of elite law firms has added fuel to an already heated academic debate about the role of affirmative action in the legal profession. The writings of one
legal scholar in particular have helped resuscitate the arguments of affirmative action opponents, who question whether law schools have the legal right to use race as a decisive factor in admissions. In his legal review articles, University of California, Los Angeles, law professor Richard Sander has advanced the idea that race-conscious affirmative action is itself the culprit in explaining why Blacks and Hispanics are in comparably low supply as lawyers. He says it also explains why those two groups experience disproportionately high attrition rates in large  firms.

“Sander has been very prominent and controversial, using quantitative analysis to look at affirmative action,” says Conley.

This past summer, the conservative-leaning U.S. Commission on Civil Rights highlighted Sander’s work at a public hearing, as Commission members examined whether the American Bar Association pressures law schools into pursuing allegedly illegal race-conscious admissions policies.

“It seems the Bush appointees of the Civil Rights Commission have a clear political agenda that’s anti-civil rights and certainly anti-affirmative action, so it’s not surprising that they would seize on the anti-affirmative action article,” says Paul Butler, a professor at George Washington University School of Law.

A ‘Mismatch’ From the start?
In the widely read Stanford Law Review article, “A Systemic Analysis of Affirmative Action in American Law Schools,” published in 2004, Sander contends that race-conscious affirmative action has placed significant numbers of underrepresented minorities in law schools for which they are not well prepared. The “mismatch” of Black students has resulted in fewer minorities overall completing law school and passing the bar, the article concludes. Sander argues that race-neutral admissions policies would match less prepared minority students with less competitive schools, where they would presumably perform better.

Affirmative action opponents hailed “A Systemic Analysis” for its quantitative approach, which documented the academic disparities among racial and ethnic groups and found that Black law students generally performed worse than their White and Asian peers. Sander, who has a doctorate in economics in addition to a law degree, concluded that doing away with race-conscious affirmative action would increase the number of Blacks graduating from law school and passing the bar.

In a second article, “The Racial Paradox of the Corporate Law Firm,” published this past summer in the North Carolina Law Review, Sander expanded his argument, writing that the law school mismatch puts law firms in the position of recruiting minorities who, despite attending top schools, have lower average grades than their non-minority peers. The article suggest that the minorities with lower grades receive less mentoring and fewer quality assignments because of their inferior performance.

“In the end, the biggest unknown in this process is the extent to which the benign neglect of minority associates at elite firms arises from actual performance problems in the associates versus the mere expectation of such problems among the partners,” Sander wrote. “The fact that similar problems appear to be nonexistent for women at these firms (for whom preferences are nonexistent), and for Blacks at smaller firms (who also do not seem to generally benefit from preferences) suggests that these problems at least have a foundation in real differences in performance.”

Sander’s contention has annoyed and angered some of his critics, who say the second article is weakly constructed and based on the flawed foundation of his law school mismatch premise. Some of his critics have questioned the need for even responding to the “Racial Paradox” article, since they say his mismatch argument has already been effectively refuted.

However, UNC’s Conley says Sander should be taken seriously, and that he’s been the target of some unfair criticism. Last year, Conley served as the faculty co-chair of a public symposium organized by UNC’s student-run law review that brought Sander and other scholars to campus to present papers on the career experiences of lawyers. Conley says Sander’s work on law school diversity made him an attractive candidate to write and speak on why major law firms are finding it so difficult to retain and promote minorities. Sander’s session drew the largest crowd of the day-long symposium.

“There’s a lot going on with regard to diversity in the legal profession, and [Sander’s work] was timely,” Conley says.

Critics Respond 
In 2005, Duke University Law School professors James E. Coleman Jr. and Mitu Gulati co-authored “A Response to Professor Sander: Is It Really All About the Grades?” published alongside “The Racial Paradox” in the North Carolina Law Review. In their article, Coleman and Gulati credit Sander for documenting the high attrition rates among minority attorneys, especially Blacks, at large corporate firms. The article praises Sander for providing “important contributions to the literature on large law firms” and for his “serious and largely successful attempt to document empirically the racial attrition problem at these firms.

“Prior work, especially that in law reviews, is based largely upon rumor and anecdote. Sander, on the other hand, undertakes the complex and tricky task of drawing conclusions from multiple, large data sets in his attempt to triangulate this complex problem,” the authors wrote.
However, they fault Sander for his contention that the comparatively lower grades earned by Black law students represent an important factor in explaining their attrition at large law firms.

“Sander concludes — with the caveat that other forces obviously are at work — that the fact that Black associates enter with significantly lower grades likely plays a key role in the high attrition rates for Black associates,” Coleman and Gulati wrote. “We believe that this conclusion cannot be defended solely on the basis of the data Sander analyzes.”

Given the prominence that Sander’s articles have attained, Coleman says he would like to see unbiased social scientists weigh in on the UCLA professor’s research.

“My view is that I’m surprised that there aren’t more scholars who are challenging his methodology,” Coleman says. “You don’t have to believe in affirmative action to look at what he did and to critique the methodology. He’s ignoring what happens within the law firms. There’s no way for him, using these data sets, to determine what’s going on within the law firms and what the different cultures are in the law firms.”

Like Coleman and Gulati, Harvard’s Wilkins credits Sander for exposing the difficulties Blacks and Hispanics face at elite law firms. But he too has serious reservations about the methodology. Wilkins and Sander are both members of the executive coordinating committee for the same research project, “After the J.D.: First Results of a National Study of Legal Careers.” Sander drew upon the study and two other data sets for his two articles. 

“Everything that Sander has [in the second article] is based on people who have been at law firms no more than three years, and probably more like a year-and-a-half to two years. And the numbers are relatively small,” Wilkins says.

“Frankly, all of his data in the paper is entirely consistent with the stuff that I’ve been writing for years about what’s happening with Black lawyers in law firms, which is they’re not getting access to the same work, the same training opportunities, the same mentoring, the same developmental opportunities as their White peers on average,” he adds.

For his part, Sander defends the “Racial Paradox” article on the basis that it narrows the possible explanations as to why minorities are leaving large law firms at a more frequent rate than non-minorities.  

“I don’t think the article goes any further than the data lets me go,” he says. “I agree the data is not definitive, but it’s really helpful to focus on what are the most relevant possibilities and what do we look at next.”

The Task Ahead
Scholars like Conley and Wilkins say examining the cultures and practices of large firms promises to be a formidable task because research evidence hasn’t yet led to new practices and solutions.

Conley, who is also an anthropologist, says senior administrators he’s spoken to seem largely unwilling to push their firms to make the type of “radical changes” that may be necessary to ensure significant minority representation at the highest levels.

“Our informants have expressed a pervasive and powerful belief in the need to maintain the status quo,” with regard to how attorneys are trained and promoted in large firms, he writes in an upcoming article in Law and Social Inquiry, a journal published by the American Bar Association.

“I’m not terribly optimistic about this issue. No easy answers seem to be coming forth,” Conley says.

In his forthcoming book, The Black Bar: The Legacy of Brown v. Board and the Future of Race in the American Legal Profession, Wilkins will devote some attention to the challenges that Blacks and other minorities have been facing in corporate law firms.

The book is scheduled for publication in 2007. New data and analysis from the “After the J.D.” research project will also see publication next year.

“The study was very interested in this question of who succeeds and why in various sorts of practice settings. We’re about to go out and do the second wave of data collections,” Wilkins says.

“In another year, we hope to have a lot of data on these same people, who now have been out six or seven years. And we’ll be able to see a lot more about their careers, including where the people who leave law firms are going.” 

 Joyce Sterling, a law professor at the University of Denver, also participated in the “After the J.D.” study as an investigator, and she believes the next edition will provide constructive analysis and data.

“I think that people are increasingly interested in what makes for professional success, which isn’t just a question for Black people,” adds Wilkins. “This is a question for everybody.”

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