How Racial Preferences Backfire

Stuart Taylor Jr., National Journal, June 19, 2006

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.

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Sander’s analysis is a natural sequel to his stunning 115-page Stanford Law Review article [PDF] in 2004 showing how the enormous racial preferences used by all selective law schools backfire against black students.

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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 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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