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A quarter-century ago, Robert “Dean” Clayton was associate dean at Tulane Law School and had just founded the Texas/Tulane Minority Clerkship Program, a groundbreaking and successful effort that placed scores of minority first-year law students in Am Law 100 firms and Fortune 50 law departments until its disbandment in 1995.
As an authority on legal diversity efforts, Clayton found himself quoted alongside a 28-year-old summer associate in a July 1990 story in The Chicago Reporter, “Law Firms Still Lag in Minority Hiring,” which noted that black partners represented a stagnant 1.2 percent of all partners in Chicago firms.
That associate was Barack Obama.
The words of a young Obama, then a month into his second-year summer associate post at Chicago’s Hopkins & Sutter (since merged into Foley & Lardner), were prescient. “It’s common knowledge that a lot of lawyers are unhappy with their profession,” he told the publication. “The difficulties end up, inevitably, being magnified for young minorities, either because they don’t have support networks or because their abilities may be questioned due to racism. They feel under the gun.”
Fast-forward to today, and the percentage of black partners has remained stuck at 1.9 percent for five years, as The American Lawyer reported in its June issue. Experts cite a variety of causes that have made partnership both a more difficult and less attractive proposition for black lawyers, including the increased pressure to bill and to generate business as well as the persistence of both implicit racial bias and a unique “tournament” system of promotion at firms designed to winnow out all but the most successful associates.
Clayton, who now serves as of counsel at the Washington, D.C., office of Gonzalez Saggio & Harlan, one of the largest minority-owned firms, noted in an email to The American Lawyer that the continuing trend “was an alarming ‘back to the future’ moment for me.”
Reached by phone, Clayton reflected on his own experience as a black lawyer, and pointed to the similar obstacles faced by a man who went on to become the country’s president. “Here you have this Harvard Law student who’s a summer associate, and he is basically laying out the impediments to the retention and promotion of black lawyers,” Clayton says.
In fact, Obama had made similar observations about racial disparities at law schools three months earlier. In April 1990, Obama, who had just been elected the first black president of the Harvard Law Review, told the Miami Herald that “professors may treat black students differently, sometimes by being … more dismissive, sometimes by being more … careful because they think … that somehow we can’t cope in the classroom.” He also said he didn’t intend to pursue a fast-track private practice career—a point that apparently didn’t affect Hopkins & Sutter’s hiring of him a few months later.
Clayton says a little head start for minorities in the profession seemed to ease some of the early impediments to success. Many of the graduates of Tulane’s 1L minority summer placement program, he says, have gone on to top jobs in law departments, politics and law firms. Alums of the program include Rod West, chief administrative officer of Entergy Corporation; state Rep. Rafael Anchia of Texas, of Haynes and Boone; Darrin Glymph, head of Orrick, Herrington & Sutcliffe’s public finance team in Washington, D.C.; and Shauna Johnson Clark, Norton Rose Fulbright’s labor and employment practice head, to name a few.
What pains Clayton now, he says, is how little has changed in the private practice of law. Rather than focusing on identifying talent among young lawyers, diverse or otherwise, “we are a profession of elimination.”
“Did Hopkins & Sutter see the potential in Obama, the second-year associate, to become the president of the United States? If they did not, why not?” he says. “The answer to that question is what really needs to be addressed to get to the bottom of the problem.”