The Volokh Conspiracy - Illegal Fellowship at Kirkland and Ellis?:

Kirkland and Ellis awards a "diversity" fellowship at many of the nation's leading law schools (see this announcement for the one at Yale). The fellowship seems to consist of a Summer associate position at K & E, plus a $15,000 stipend during one's third year of law school. Only non-whites are eligible.

If K & E wishes to use its resources for this program, it's okay with me. It doesn't do anything to increase the overall pool of minority attorneys from disadvantaged groups, which would be a more philanthropic endeavor, but given the pressures clients are putting on law firms to staff projects with minority attorneys, it seems smart from K & E's perspective to run a program like this to attract help attract the cream of the crop.

But I have to wonder whether this program was run past K & E's employment lawyers. I'm not a Title VII expert, but I'm pretty sure that any sort of quota for minorities in employment is illegal, absent very special circumstances. And K & E's "minority fellowhsip" program amounts to a 100% quota for minorities for the relevant positions. Put another way, while race may be used as a factor under precedents from the 1980s, I don't think that any position can be reserved by race. Clients may demand minority attorneys, but race cannot be a bone fide occupational qualification under current law, as I understand it. Am I missing something? I'll happily update the post to cite the precedent that makes this program lawful, if it exists. [UPDATE: The comments contain a lengthy and interesting discussion of the relevant legal issues. The case most helpful to K & E would be U.S. Steelworkers v. Weber, a case decided in 1979 by a much more liberal Court. But current precedential value aside, I think that Weber is readily distinguishable on several grounds, for example, that K & E's program was undertaken in pursuit of "diversity," not to redress a gross imbalance versus the relevant labor pool (unless you believe that K & E has determined that, e.g., "Native Alaskans" and "Pacific Islanders" are underrepresented at its various offices), that the program in Weber was meant to redress specific discrimination against specifically African Americans in union apprenticeship programs, and that the K & E slots are entirely reserved for "minorities." That's not to say that Weber explicitly bans this program, just that it's not controlling, and that some of the rationales for upholding the program in Weber not only don't exist here, but would suggest that this program, with its 100% quota, diversity rationale, and lack of narrow tailoring, is illegal. But if there's a more directly relevant precedent on point, please let me know.]

Hat tip: Law firm diversity blog, from which I learn that Thompson Hine has a very similar, though much smaller scale, program.

UPDATE: For a more traditional form of discrimination, see this advertisement (same hat tip) for a billing coordinator at Baker & Mckenzie's Bangkok office; only women between ages 25 and 32 need apply.

	[David Bernstein, November 14, 2006 at 10:52am] Trackbacks Illegal Fellowship at Kirkland and Ellis?: Kirkland and Ellis awards a "diversity" fellowship at many of the nation's leading law schools (see this announcement for the one at Yale). The fellowship seems to consist of a Summer associate position at K & E, plus a $15,000 stipend during one's third year of law school. Only non-whites are eligible. If K & E wishes to use its resources for this program, it's okay with me. It doesn't do anything to increase the overall pool of minority attorneys from disadvantaged groups, which would be a more philanthropic endeavor, but given the pressures clients are putting on law firms to staff projects with minority attorneys, it seems smart from K & E's perspective to run a program like this to attract help attract the cream of the crop. But I have to wonder whether this program was run past K & E's employment lawyers. I'm not a Title VII expert, but I'm pretty sure that any sort of quota for minorities in employment is illegal, absent very special circumstances. And K & E's "minority fellowhsip" program amounts to a 100% quota for minorities for the relevant positions. Put another way, while race may be used as a factor under precedents from the 1980s, I don't think that any position can be reserved by race. Clients may demand minority attorneys, but race cannot be a bone fide occupational qualification under current law, as I understand it. Am I missing something? I'll happily update the post to cite the precedent that makes this program lawful, if it exists. [UPDATE: The comments contain a lengthy and interesting discussion of the relevant legal issues. The case most helpful to K & E would be U.S. Steelworkers v. Weber, a case decided in 1979 by a much more liberal Court. But current precedential value aside, I think that Weber is readily distinguishable on several grounds, for example, that K & E's program was undertaken in pursuit of "diversity," not to redress a gross imbalance versus the relevant labor pool (unless you believe that K & E has determined that, e.g., "Native Alaskans" and "Pacific Islanders" are underrepresented at its various offices), that the program in Weber was meant to redress specific discrimination against specifically African Americans in union apprenticeship programs, and that the K & E slots are entirely reserved for "minorities." That's not to say that Weber explicitly bans this program, just that it's not controlling, and that some of the rationales for upholding the program in Weber not only don't exist here, but would suggest that this program, with its 100% quota, diversity rationale, and lack of narrow tailoring, is illegal. But if there's a more directly relevant precedent on point, please let me know.] Hat tip: Law firm diversity blog, from which I learn that Thompson Hine has a very similar, though much smaller scale, program. UPDATE: For a more traditional form of discrimination, see this advertisement (same hat tip) for a billing coordinator at Baker & Mckenzie's Bangkok office; only women between ages 25 and 32 need apply.