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Minority attorneys, particularly African Americans, are inferior to their white counterparts. Certainly, there are those who defy the norm, but they are vastly outnumbered by countless others for whom mediocrity is the common thread. An incendiary pronouncement? Definitely. But it is precisely what UCLA law professor Richard Sander purports to prove in his article, “The Racial Paradox of the Corporate Law Firm.” As commentator and Washington University law professor Christopher Bracey aptly observed, “[s]adly, Sander’s work attempts to reinvigorate age-old beliefs in the natural and cultural inferiority of blacks.” Unsurprisingly, the article has spawned myriad progeny, including Stuart Taylor Jr.’s missive, “Doomed to Fail?,” in which the author laments large law firm recruiting efforts that set up unassuming and unqualified African American and Hispanic attorneys for inevitable failure. Descartes, He Isn’t In reading this material, I was reminded of my days as a philosophy student at Swarthmore College, and particularly of a theory class led by then-chairman of the department professor Hans Oberdeik. In evaluating a student’s paper one day, Oberdiek discussed the concept of “circular argument.” A circular argument, he explained, assumes the truth of the very hypothesis it purports to prove, and that assumption becomes a principal tenet of the argument. Sander and company would not have fared well in Oberdiek’s class. To be sure, Sander’s article is punctuated with tables and charts of “empirical” data. (These since have been criticized by many, including Akin Gump Strauss Hauer Feld partner Michele Roberts, who noted that they compare “apples and oranges, bananas and bowling balls.”) At the root of his analysis, however, is the thinly veiled, palpable and all-too-familiar notion that as a group, minorities – especially African Americans – are simply naturally and culturally inferior. It logically follows, therefore, that minority attorneys on the whole have, as one commentator summarized, “inferior talents and wits relative to their white peers.” The Chicken or the Egg Armed with this assumption, Sander sets about “proving” it. The thrust of his position is two-fold: In their quest to become more diverse, large law firms lower their standards to recruit minority, particularly African American, attorneys; and These “aggressive” recruiting measures inevitably lead to high attrition rates among African American attorneys who were woefully unqualified in the first instance. Sander’s thesis is not one of malice, however, but one of benevolent pity; the true victims of law firms’ misguided efforts, he posits, are the “intended beneficiaries” (i.e., minority attorneys). Moreover, the few qualified African American and Hispanic attorneys at large law firms suffer the stigma of negative stereotypes fostered by the supposed departure from rigorous recruiting criteria – “black man’s burden” � la Sander. In support of his first claim, Sander points to a disparity in grade strata between white and African American/Hispanic law students. From his limited data, he concludes – as professor Christopher Bracey of Washington University School of Law puts it – that “this educational achievement gap is indicative of a performance deficit.” Contrary to his position, Sander’s conflation of law school grades and law firm performance/success is over-simplistic and flawed. No one can reasonably argue that grades are not important. They are. Good grades can be indicative of the “base skills of writing and critical analysis,” noted a large law firm minority partner in response to Sander’s article. But, “[t]hose base skills account for maybe 20 percent of what it takes to make it in these firms.” Herein is the missing link in Sander’s claim. The abundance of highly successful large law firm partners nationwide who emerge with less than top tier academic pedigrees, as well as the countless academic elite who fail as large firm attorneys, belie Sander’s fictional ipso facto correlation of good grades and successful law firm performance. Research compiled by the Minority Corporate Counsel Association, for example, revealed that a mere quarter of white partners at elite firms graduated from law school with honors. Perhaps Sander is unfamiliar with the concepts of “book smart” and “street smart.” In this context, I use the term “street smart” generically to describe an attorney’s ability to problem- solve, effectively communicate with others (clients, opposing counsel, judges and juries), prioritize, persuade and counsel – little of which is truly measured by law school exams. As to the remaining 80 percent of “what it takes” to succeed at large law firms, “having [someone] with power and authority [who] wants you to succeed [i.e., a mentor], having the social skills to connect with superiors and clients in a way that makes them want you to succeed, and being in a practice area that is profitable and important to your firm’s bottom line” are among key ingredients, noted Akin Gump’s Roberts. It is na�ve, if not disingenuous, to dismiss the full spectrum of factors that informs hiring decisions in addition to basic “good grades,” including oral communication skills, presence, work ethic, commitment, wit, chemistry, collegiality, drive, leadership ability, independence, organization skills, integrity, judgment, professionalism, connection to the region and a sincere interest in a firm’s practice, to name a few. Curiously, Sander also goes to great lengths to discount the emphasis that large law firms place on law school prestige as indicia of “quality.” His position, however, is contrary to the experience of many of us who participate in associate recruiting. Notably, data from various sources reflect a significantly greater percentage of large law firm minority partners who graduated from top 5 or top 10 schools compared to their white counterparts. Consideration of Sander’s odd claim in this light removes much of the mystery underlying his motivation. ‘Everyone’s a Little Bit Racist’ The title and lyrics to the foregoing song from Broadway’s Avenue Q raise an uncomfortable thought that is apropos here: Racial biases exist in all of us, no matter how overt or subconscious, malicious or seemingly benign. This fundamental albeit regrettable fact of the human condition is wholly and ironically lost on Sander. In lieu of a meaningful analysis of the factors that lead to high attrition rates among African American and Hispanic associates, he clings doggedly to his truism – large law firms recruit unqualified minority attorneys who ultimately fail and leave because they lack the requisite skills and talent to succeed. Minority associates, particularly African Americans, he contends, succumb almost immediately to performance deficits born of their inferior qualifications (as attorneys and people), and soon thereafter yield to resulting marginalization. Interestingly, Sander acknowledges the role that negative racial and ethnic stereotypes play in creating conditions that lead to minority attrition. According to Sander, however, these stereotypes are linked directly to the lowering of law firm’s recruitment standards. Partners and other firm leaders, says Sander, have “an overwhelming incentive” to seek out those whom they “perceive as most able,” and a corresponding incentive to “shun” those whom they regard as “not up to the job.” “This dynamic,” he concludes, “will almost inevitably work against any group that has received a racial preference in hiring . . . .” Thus, robust racial “preferences” backfire by tainting the very few minority associates who are actually qualified to work at large law firms. Putting aside Sander’s feigned concern for the plight of this microscopically small group, his position simply belies reality. Pervasive, often subconscious, racial stereotypes persist. As Roberts stated bluntly, “[l]ike it or not, there remains both covert and overt discrimination in law firms . . . [p]eriod.” Law firms, like all institutions, import the biases of larger society – and entrenched biases abound. Consider, for example, the alarming results of a recent study in which young girls were simultaneously shown white and African American dolls, identical apart from race, and asked which they preferred. Time after time girls of both races chose the white doll, explaining that it was “good” or “pretty” or some other measure of superiority. Children exposed over time to racial stereotypes mature into adults who act on those stereotypes. Negative racial stereotypes are particularly corrosive because they both desensitize the holder and dehumanize the victim. Law firms are no safe havens. To the contrary, the legacy of racial stereotypes is that minority attorneys, particularly African Americans, routinely are subjected to greater scrutiny than their white peers. Minority attorneys are all-too-often put under a microscope where “every flaw is exaggerated” and “[e]very mistake is announced,” observed one large law firm partner. Inherent biases thus become self-fulfilling, and catalysts for attrition. Such biases also serve as fundamental barriers to the formation of effective mentoring relationships, a surefire recipe for failure. On the Bandwagon Open the door, and the hangers-on will walk through. So it is not surprising that conservative activist Curt Levey, who led the charge against the University of Michigan’s affirmative action programs, latches onto Sander’s article like Velcro. In his most recent anti-diversity project titled, “The Legal Implications of Complying with Race and Gender-Based Client Preferences,” Levey relies on Sander’s work in support of his contentions that law firms “use different hiring standards for black and Hispanic attorneys than for those of other races,” and that the percentage of African American attorneys at large law firms is disproportionate to the percentage of African Americans in the “qualified” legal labor market. Levey seeks to advance his agenda by recasting law firm diversity efforts as “racial preferences,” a term he borrows liberally from Sander. Such “preferences,” he argues, violate federal anti-discrimination laws. Levey’s self-serving equation of diversity effort with quota-like racial preferences reflects the essential fallacy of his claims. Similarly flawed is his ludicrous comparison of anti-civil rights activists who sought statutory exemptions for employers whose clients insisted on doing business with whites only, on the one hand, and clients today who demand racial inclusiveness and balance from their outside counsel, on the other. The former sought to perpetuate inequality and exclude individuals based solely on racial bigotry. By contrast, the latter seek to ensure equal opportunities in hiring, assignments, and promotions for individuals of all races. The aim of diversity efforts goes beyond mere selection or numbers – rather, as one consultant aptly noted, “[i]t’s taking a look at barriers at the entry level [and] all the way up to the executive suite.” Of course, if one blindly accepts Sander’s claim that law firms lower their credentials for minorities, as Levey plainly does, it is easy to trace an argument that posits discrimination against qualified whites passed over for inferior minorities. Ironically, rather than dole out benevolent pity, Sander’s article in fact hurts those whom he professes to help, as well as denigrates all others. White Flight In closing, what about the attrition of white attorneys from large law firms? To this reality, Sander barely blinks. His nonchalance is born of his assumption that white attorneys are qualified to be at the firms in the first instance and thus their attrition is due to factors other than inferior abilities. More circular “logic,” no surprise. Sander’s article surely would not make the grade in Oberdiek’s class. But given its volume, it would make good kindling. APRIL M. BYRD is of cousel in the health effects litigation practice group of Pepper Hamilton, resident in the Philadelphia office. Byrd concentrates her practice on white collar and corporate investifation work.

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