How Racial Preferences Backfire

Stuart Taylor Jr., writing in the Monday, June 19, 2006 National Review, reports on what affirmative action for lawyers results in:

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 [PDF] 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 Dec. 6, 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.

· 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 years.

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 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.

For the sake of minorities – end race based affirmative action as soon as possible!

66 Responses to “How Racial Preferences Backfire”

  • HP, you really need to cut out the marathon posts. The article could have made the point with 1-2 well chosen quotes + a longer section w/ your take + a link to the whole read. This is the blogosphere of sound bites & summaries. You know that. 😉

    P.S. Well-made point about how racial preference alone will backfire when made as a cover for lower expectations. It is sad that racial preferences have become synonomous with lower expectations, since they are not inherently the same.

    Race is still a factor in our society – which is why this is, not or – but lowering expectations in the search for racial equality doesn’t level the playing field, it just shifts the potholes around.

  • Yep, great comment SG.

    As for this specific post, I posted it in full precisely because you can no longer find it online via the link I provided.

  • are you sure you’re latino?!?!? damn boy if hadn’t met you in person…anywho, i agree with spanglish gringo. i had to prove myself for the 1st year i worked at my current job!!! and i think alot of it had to with the fact that i’m a latina. as for ending affirmative action i totally don’t agree with that!!!! many great, intelligent individuals wouldn’t have gotten a chance to “prove” themselves had it not been for affirmative action.

  • …and on the other hand, many great intelligent individuals wouldn’t have dropped out of college had it not been for affirmative action.

    I think the latter group is larger.

    Ya ves, it is the anti-affirmation action group that is looking out for the real interests of latinos, making us the ‘true’ latinos. 😉

  • For those interested in reading Sander’s article and the Coleman & Gulati response, they are available online at

    Vicki Shabo
    Editor in Chief, Volume 84
    North Carolina Law Review

  • I find it troubling that many (including Blacks and Browns) conclude that many “minorities” would not have the opportunities they currently have, or be where they are in life, but for race-based preferences policies (i.e. Affirmative Action programs).

    I far as I know, the advocates of Affirmative Action programs are rarely (if ever) asked to back up their assertions that Affirmative Action is responsible for the social progress of minorities. Thomas Sowell asked in Civil Rights: Rhetoric or Reality?, that we consider trends in Black employment prior to the implementation of race based discrimination policies in favor of Blacks. He noted that the number of Blacks in “professional, technical, and similar high-level positions more than doubled” in the 10 years from 1954 to 1964. That’s before the Civil Rights Act and without Affirmative Actions programs. He noted that an immediate boon for Blacks did not result as a consequence of the passage of the Civil Rights Act. In fact:

    “The rise in the number of blacks in professional and technical occupations in the two years from 1964 to 1966 (after the Civil Rights Act) was in fact less than in the in the one year from 1961 to 1962 (before the Civil Rights Act). If one takes into account the growing black population by looking at percentages instead of absolute numbers, it becomes even clearer that the Civil Rights Act of 1964 represented no acceleration in trends that had been going on for many years. The percentage of employed blacks who were professional and technical workers rose less in the five years following the Civil Rights Act of 1964 than in the five years preceding it.”

    This implores us to ask ourselves: How can we minorities unquestionably credit, in whole or in part, our success in certain endeavors to the practice of Affirmative Action? How can we know with any certainty that we wouldn’t be where we are now without Affirmative Action?

    sonrisa morena, I ask that you ponder the possibility (in my opinion, probability) that you would have been just as successful without the “assistance” of a “benevolent” people and their policies. Do you really believe that, but for Affirmative Action programs, you and the many intelligent individuals, to whom you’ve referred, would have careers in a lower paying or “less fulfilling” occupations? I’ve heard people say, to my amazement, that “minorities would still be in unskilled and low-paying jobs if it weren’t for Affirmative Action.”

    I’m sick and tired of seeing many fine people of color claiming (and being told) that they owe their success to those supposedly helpful policies (and by extension to those politicians and “kind outsiders” that pushed for them), not to mention my loathing of the stigma that surrounds race-preference policies and the minority “beneficiary.”

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