|Law firms and the
downside of 'aggressive racial preferences' -- U.S. News 06-20-06
By John Leo
"Here is a devastating statistic on racial preferences: Blacks account for only 1 or
2 percent of law students with high grades, yet they make up 8 percent of lawyers hired by
large law firms.
"Why are blacks hired by the large firms at four to eight times the rate that their
marks seem to warrant? Because the understandable pressures to hire more black
lawyers result in offers to many blacks who understandably cannot keep pace with the
faster-track competition. Young black lawyers leave big firms at two to three times the
rate of whites. Those who stay are often consigned to grunt work that their bosses
think they can handle.
"Richard Sander, a UCLA law professor, wrote a piece in 2004 in the Stanford Law
Review showing how racial preferences backfire against black students. Now,
according to Stuart Taylor Jr., the excellent legal columnist at National Journal, Sanders
has written another strong article on the subject to be published soon in the North
Carolina Law Review. Taylor writes: "Many capable African-Americans experience
frustration and failure because racial preferences thrust them into elite settings where
they compete with whites with far better qualifications."
"Sander's forthcoming piece will be titled 'The Racial Paradox of the Corporate
Law Firm.' The paradox is that 'aggressive racial preferences' at the
law-school and law-firm level tend to undermine the careers of blacks and thus cause the
failure of the whole preferential system. The core of the problem is the small
number of blacks who emerge from high school with strong academic skills.
"Taylor writes that [based upon Sander's research] at least 46 percent of black
lawyers at large firms had law-school grade-point averages below 3.25, compared with 14
percent of whites. At law schools, preferences ensure that black students are
clustered near the bottom of their classes, with only 8 percent ranking in the top half.
"Sander and Taylor acknowledge that bias may play some role at large law firms but
cannot account for the high rate of failure. Taylor writes: 'Why would the same
firms that use aggressive racial preferences to bring in minorities then turn around and
discriminate against them?' Taylor reports that 56 percent of black lawyers at
large firms admitted thinking that their race or ethnicity had been relatively important
in winning them job offers. This is significant because testimony at a hearing in
Washington yesterday seemed to point generally in the opposite direction. David
Bernstein, law professor and outstanding legal blogger at Volokh Conspiracy, reports that
he and Sander expressed concerns that many 'diversity' candidates at law schools 'have no
idea regarding the extent of the preferences they receive or how they might affect their
chances of successfully completing law school and passing the bar exam.'
"The Civil Rights Commission is conducting hearings on a proposed and wayward
American Bar Association policy that would in effect require law schools to use racial
preferences in admission or risk the loss of their accreditation. Another pressure
for more preferences leading to more weak admissions and more failure.
-- Excerpted from the
John Leo article
in U.S. News June 20, 2006. Last known link:
U.S. News 6-20-06
Affirmative Damage -- National
Students sacrificed in the name
By Peter Kirsanow
"What if proponents of affirmative action are wrong? That is, what if
racial-preference policies don't increase the numbers of minorities who graduate from
colleges, law schools, etc, but rather, do just the opposite? Moreover, what if the
harm done to minority academic and employment prospects is compounded by the fact that the
policies are blatantly unlawful?
"What if affirmative action is a giant, devastating sham?
"Startling testimony at a recent U.S. Commission on Civil Rights hearing from Dr.
Richard Sander, Professor of Law at UCLA, showed that racial preferences at American law
schools are just such a sham. Professor Sander's two most recent analyses reveal
extraordinary disparities between black law students and their white comparatives: The
grade-point averages of approximately 50 percent of black law students cluster in the
bottom ten percent of the class. Blacks are two and a half times more likely than
whites not to graduate. Blacks are four times more likely to fail the bar exam on the
first try and six times more likely never to pass the exam despite multiple attempts.
"Perhaps the most astonishing statistic is that only about a third of blacks entering
law school this fall will graduate and pass the bar exam on the first try. Bleak are
the prospects for many black law students.
"Professor Sander testified that the primary cause for the black law-school disaster
is racial preferences. His systemic analyses describe in unapologetic detail how
affirmative action creates a mismatch effect, i.e., black students enroll at schools at
which they're ill-equipped to compete.
"Consider the progression resulting in the above failure rates. As my colleague
Abigail Thernstrom has noted, The National Assessment of Educational Progress, "the
nation's report card", shows that only 25% of black 17 year olds read as well as the
average white 17 year old. Nearly 90% of black 17 year olds score below the average white
17 year old in math. More than 90% of black 17 year olds score below the average white 17
year old in science. In the end, the average black high school graduate has the academic
proficiency of the average white 8th grader.
"Accordingly, the number of black high-school graduates ready to compete at the
college level is small. The number who performed well enough to compete at elite colleges
is smaller still.
"Colleges must draw from this small, yet underperforming (relative to whites) group
in order to satisfy their "diversity" programs. Admissions offices couldn't
begin to fill their diversity requirements if black applicants were evaluated in the same
manner as whites. A regression analysis conducted by Robert Lerner and Althea Nagai on
behalf of the Center for Equal Opportunity shows that at some schools black applicants are
more than 100 times more likely to be admitted than whites with the same GPAs and SATs.
"Blacks flunk out of college at a much higher rate than whites. The black students
who do graduate still lag far behind white students in academic competency the gap
that prevailed upon matriculation largely persists through graduation.
"It's from this small, underperforming pool that law schools in search of diversity
must populate their classrooms with "meaningful numbers" of black students. The
problem is that there aren't enough competitive black applicants to go around. As
University of Texas law professor Lino Graglia pointed out a few years ago, the median GPA
and LSAT percentile for admittees to the country's elite law schools were 3.8 and 98
respectively. At the time fewer than 20 black law students in the entire country met those
standards. One elite law school, University of Michigan, has about 30 black law students
in each entering class. Michigan alone could snap up all of the black students at the
median and still have ten seats left to fill. This means that in order to achieve
"diversity," Michigan and the other first-tier law schools must dig well below
the median to fill the remaining seats.
"This creates what Professor Sander calls the "cascade effect." Using
preferences, the top schools vacuum up all of the black applicants at the median, as well
as those one or two strata below leaving no black applicants who meet the unalloyed
standards of the second-tier law schools. These schools must, in turn, employ powerful
preferences to fill diversity seats with black applicants from the next level (or two)
below, and so on. The result is that at most law schools black students are not nearly as
competitive as their white classmates. Abysmal graduation and bar passage rates follow.
And the pattern replicates itself in the job market.
"The landmark Supreme Court case, Grutter v. Bollinger sanctions the use of race in
admissions provided the preference is but a flexible "plus" factor a
feather on the scale that's considered along with a host of other factors. But
Professor Sander's research shows that the preferences employed by law schools generally
don't comply with the Grutter standard. He maintains that on a 1,000-point scale the
median gap between white and black law school applicants is 135 points. The preferences
are overwhelming and, contra Grutter, applied mechanically.
"One of Professor Sander's most interesting findings is that there's no credible
evidence that blacks would underperform whites if schools used race-blind admissions
policies. Blacks would then enroll at schools that are a more appropriate competitive
match, thereby increasing the probability of graduation. He stresses that this isn't about
race. Rather, other variables are at play.
"If there was a product on the market that caused blacks, or any other group, to end
up at the bottom of the class, flunk out in large numbers, and suffer in the job market
there would be an uproar for the Federal Trade Commission to pull the product immediately,
coupled with calls for congressional investigations. Lawsuits would abound.
Not so with racial preferences. Maybe it's just easier to scam black students than
fix the structural problems causing poor performance."
[Peter Kirsanow is a member of the National
Labor Relations Board. He is also a member of the U.S. Commission on Civil Rights. These
comments do not necessarily reflect the positions of either organization.]
-- Excerpted from the
Peter Kirsanow article
in National Review June 27, 2006. Last known link:
National Review 06-27-06
Students sacrificed in the name
of 'diversity' -- National Journal 06-19-06
By Stuart Taylor Jr.
"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 <<Download the
study in PDF format>>
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 <<Download Systemic Analysis in
PDF format>> in 2004 showing
how the enormous racial preferences used by all selective law schools backfire against
"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 Dec. 6, 2004,
column, 'Do Racial Preferences Reduce the Number of Black Lawyers?' <<National Journal Link>>
"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.
- "Preferential hiring of
minorities with low grades. Large law firms feel enormous pressure -- from
corporate clients, the media and others -- to become more diverse. So for decades they
have aggressively recruited black and Hispanic law students. Since very few have grades
that meet the firms' usual standards, the firms hire many minorities with grades "far
below those of the white students hired at the same firms."
"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.
- "How grades predict law
firm success. It is 'quite likely that the grade gap between
whites and blacks in law school is duplicated in performance once inside the firm,'
Sander asserts. In this, he challenges the popular myth that -- in law and other vocations
-- grades do not predict future job performance.
"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.
- "Racial disparities in
training and assignments. Numerous surveys of young black lawyers in
large firms show that 'within a couple of years of starting associate jobs, many
blacks and Hispanics have been largely relegated to routine, unchallenging work and
deprived of most benefits of training, mentorship, and partner contact,' Sander
reports. Most minority lawyers do more 'grunt work' than whites, have less contact with
partners, report 'frustration and a sense of failure,' and leave within the first few
"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."
- "It's not about racism.
Surveys show that a significant minority of young black and Hispanic lawyers in
large firms perceive themselves to be victims of old-fashioned racial hostility on the
job, Sander explains. But does this reflect reality?
"It's worth noting that 20 percent of entering black law students in one large survey
thought they had been victims of discrimination in the admissions process -- and that this
was quite obviously the opposite of the truth.
"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
"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
"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."
-- Excerpted from the
Article by Stuart Taylor
Last known link:
National Journal 06-19-06
Law Schools and Diversity
Standards -- Chronicle of Higher Education 06-19-06
By Elia Powers
"The United States Commission on Civil Rights took up affirmative action at law
schools during a five-hour session Friday [June 16, 2006] highlighted by political
posturing, jousting over statistics and moments of incivility.
"A George Mason University law professor - joined by a number of the commission's own
members - aired concerns that the American Bar Association, which oversees the
accreditation of law schools, is pressuring institutions to practice unlawful racial
preferences in admissions. Two other professors invited to address the group engaged in a
broader debate about the costs and benefits of affirmative action at law schools.
"David Bernstein, the George Mason law professor, said the bar association 'wants
law schools to violate the law' by mandating that institutions use racial preferences
in their admissions policies or face accrediting penalties. Steven R. Smith, chair
of the Council of the ABA Section of Legal Education and Admissions to the Bar, vehemently
denied the allegations and defended his association's written standards by saying they
don't require schools to use quotas or even use race or ethnicity in their admissions
"The ABA recently revised its diversity standards and will go before its House of
Delegates in August for approval. Smith, whose association was scheduled to appear
last month before the Education Department's National Advisory Committee on Institutional
Quality and Integrity, told the civil rights commission that he was looking for feedback
on the updated standards.
"The passage under scrutiny comes from the ABA council's longstanding Standard 211,
which, in the updated version, would be titled 'Equal Opportunity and Diversity,'
rather than 'Equal Opportunity Effort.' The text [of the ABA standard]
'a law school shall demonstrate, by
concrete action, a commitment to providing full opportunities for the study of law and
entry into the profession by members of underrepresented groups, particularly racial and
ethnic minorities, and a commitment to having a study body that is diverse with respect to
gender, race, and ethnicity.'
"There is also a new proposed section of the standard that would read, 'a law
school shall demonstrate by concrete action a commitment to having a faculty and staff
that are diverse with respect to gender, race and ethnicity.'
"Smith, who is dean of the California Western School of Law School, said the changes
to the standard, including the inclusion of the word 'diversity,' are meant to
give schools more guidance and reflect the Supreme Court's 2003 decision in Grutter v.
Bollinger, which upheld the affirmative action admissions policy at the University of
Michigan Law School as a way of promoting equal opportunity.
"Smith said the importance of diversity is clearly articulated in former Supreme
Court Justice Sandra Day O'Connor's majority opinion. 'We will see schools being more
creative in how they promote diversity,' he said.
"Still, Smith found his defense a tough sell to the mostly conservative
commissioners, many of whom questioned the need for a change in language. (Federal
law dictates that the president choose four members of the eight-member panel and Congress
the other four, and that the commission have no more than four representatives of any
political party at a time. But that can result in Republicans appointing 'independent'
members who are highly skeptical of the use of race, and Democrats doing the reverse when
they control the selection process.)
"Gerald A. Reynolds, chairman of the panel, told Smith that 'it seems wholly
inappropriate to force values on a school.' A number of commissioners also
disagreed with Smith's assertion that law schools are in agreement over the importance of
"Bernstein and a number of commissioners said they take issue with the 'diversity'
addition and the inclusion of 'race' in the standard. Richard Sander, a law
professor at the University of California at Los Angeles, focused his comments not on
institutions' consideration of race but on the negative effects he sees affirmation active
having on black law school students. He said the most recent data available - which
are from 1991 - show that black students are 2.5 times more likely than white students not
to graduate law school, and four times more likely to fail the bar on their first attempt.
'We are essentially setting them up for failure under this system,' he
told the commission.
"Sander argued that a cascade effect is in place, in which the top-tier law schools,
using what he calls a 'racial double-standard,' admit minority students who, in a
race-blind system, would be accepted into second-tier schools. The second-tier
schools thus admit what Sander says are unqualified minority applicants because the
schools feel pressure to have a diverse student body. If minority students at
first-tier schools struggle academically, they can become disheartened and dropout, he
"Sander's argument is predicated on the idea that a student is better off flourishing
at a lower-ranked school than floundering at a more elite institution. Richard
Lempert, a University of Michigan law professor, disagreed with Sander's premise. He
said that black students are better off at elite law schools because of the doors the
schools open. 'We need to tell people what the risks are of failure and let them
decide for themselves,' Lempert said. 'If there is no affirmative action,
blacks are less likely to get high-paying jobs and careers that lead to judgeships.
Someone who you think will fail might be on bar review, and someone who you think will
pass the bar review might fail.'
"Lempert's argument that there is still a 'moral imperative' for affirmative
action is based largely on studies he has conducted over the past 25 years at
Michigan. He said the numbers show that although minority students generally entered
with lower credentials and left with lower grades than their white counterparts, few
flunked out and most enjoyed fruitful careers. The bar-passage rate was not
substantially lower for those students, his work shows.
"But like many of Smith's arguments in favor of affirmative action, most of Lempert's
comments fell on deaf ears. Commissioner Jennifer Braceras went so far as to
question Lempert's motives: 'I'm concerned you are justifying affirmative action
because of your own white guilt,' she said.
" 'I don't feel guilty at all,' Lempert responded.
" 'It's not about what's best for black students. It's about aesthetics,'
or having the looks of a diverse campus, another commissioner, Abigail Thernstrom,
"Reynolds, the chairman, said that if the point is to give black students a fair shot
in the admissions process, why not lower the bar for everyone and 'do away with the
conversation of racial preferences?'
"Lempert maintained that the high price of law schools and a sometimes 'hostile
environment' once a minority student enrolls can also lead to higher-than-average
dropout rates. Sander responded by saying that 'there's a crushing process of
discovery in the first or second years for black students who realize they are there
because of affirmative action.'
"Added Thernstrom, who is a political independent but a frequent critic of the use of
racial preferences: 'If [students] are saying, "You're an affirmative
action baby," the admissions policy is generating the stereotypes.'
"But Michael Yaki, one of two Democrats on the panel, came to Lempert's defense,
saying: 'We create the stigmatization. When we are saying, "they
are going to fail," we perpetuate the stigma, and it bothers me to the core.'
"There were testy moments throughout the briefing, as speakers questioned each
other's motives, as well as their credentials. Commissioners interrupted each other,
hands were raised and ignored, and feelings appeared to be hurt. Despite the
occasional incivility, there was one point of unanimous agreement: the need for more data
on minority student performance once in law school. 'More transparency is always
better,' Braceras said.
"Many pledged to support proposed legislation from Rep. Pete King (R-N.Y.) that would
force schools to release more information about graduates and incoming students. 'My
sense is that black students aren't always aware that they fall into the desperate
category,' said Ashley L. Taylor, Jr., one of the panel's four Republicans.
"Both Lempert and Sander called for the commission to bring together a group of
politically neutral social scientists to sift through existing data on affirmative action
in law school, to which Thernstrom asked: 'Is there such a thing as a neutral
-- Excerpted from the
Chronicle of Higher Ed
Article by Elia Powers
Last known link:
Paradox of the Corporate Law Firm
Professor Sander's entire 68 page study regarding the startlingly high rate of attrition
of black lawyers at the nation's top law firms (size = 370 KB):
(Sander - in PDF format)
by Richard H. Sander
"Although nonwhites now account for nearly one-fifth of new attorneys, they still
make up less than four percent of the partners at large law firms. Most commentators
have blamed some combination of [law] firm discrimination and minority disinterest for
this disparity. In this Article, the author uses several new sources of data to
explore this phenomenon, finding significant support for the following findings:
- "Each of the major nonwhite groups
(Asians, Hispanics and blacks) are as interested during law school in careers with large
firms as are whites.
- "Large law firms use very large hiring
preferences for blacks, with the result that blacks are overrepresented among firm hires
(relative to their numbers among law graduates) and tend to have much lower grades than
their white counterparts.
- "The large preferences are plausibly
linked to a variety of counterproductive mechanisms that cumulatively produce very high
black attrition from firms and consequently low partnership rates.
- "Similar patterns, on a less intense
scale, affect Hispanics entering large firms.
"While many questions are open, the author concludes that aggressive racial
preferences at the law school and law firm level tend to undermine in some ways the
careers of young attorneys and may, in the end, contribute to the continuing white
dominance of large-firm partnerships." -- Professor Richard H. Sander, UCLA
Afterthought by Tim Fay, Editor: Several years before I met Prof. Rick Sander,
I had the opportunity to gain a very unique insight into the minority hiring practices of
our larger law firms.
On that occasion several years ago
I approached a very large law firm with very nice offices in DC, Chicago, and LA regarding
pro bono representation of Adversity.Net (a non-profit) in a dispute with the IRS.
The firm in question had a very good practice in non-profit law and dealings with
I had several productive meetings
with the pro bono manager for the firm and she thought Adversity.Net's case against the
IRS was strong, and that her firm could provide effective legal assistance to us under
their pro bono program.
At my final meeting, the pro bono
manager informed me that she had presented my case to the law firm's partners, and that
they had refused to accept my case.
Because, in her words, "the
partners are concerned that representing Adversity.Net (which strongly opposes racial
preferences) would negatively affect their diversity hiring efforts."
She then added a devastatingly
candid comment: "I don't know why the partners are so concerned that blacks
would not want to be associated with a firm representing Adversity.Net since none of our
black recruits ever stay long enough to even be considered for partner track anyway."
I related this story to Professor
Sander a year before he published "The Racial Paradox of the Corporate Law
Firm". I like to think that my story about Adversity.Net's failed effort
to find pro bono representation helped Prof. Sander decide to focus on the low
retention rate of blacks, a.k.a., "diversity hires", at America's large law
firms. "The Racial Paradox" represents a natural, useful, and
very appropriate follow-on to Rick Sander's seminal 2004 study "A Systemic
Analysis of Affirmative Action in American Law Schools" Objective study of
the unintended consequences of racial preferences at all levels is long overdue. --
Tim Fay, Adversity.Net, Inc.