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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.

Adrian:
The company that I worked for had something similar happen. Its internship program initially had a requirement to hire "one minority applicant, one female applicant and the one intern of the business unit's choice." When I raised it to corporate legal, they quickly agreed that it was not permitted and changed the program accordingly. Roger Clegg at CEO has many of the details.
11.14.2006 12:03pm
Hans Bader (mail):
It's very likely illegal.

You can only have a fellowship with a racial component for those particular races whose representation in your firm is so extremely low -- not just in absolute numbers, but compared to their percentage in the qualified labor pool (law firms in general) -- that there is a manifest imbalance between their representation in law firms in general versus in your law firm.

The fact that they are slightly "underrepresented" is not enough, it has to be a big, "manifest" imbalance, see Maitland v. University of Minnesota (8th Cir. 1998).

The underrepresentation has to be compared with those qualified for the position, not just a minority group's general percentage in the population.

And if there isn't a manifest imbalance, a desire for "diversity" won't justify using race. Messer v. Meno, 130 F.3d 130 (5th Cir. 1997); Taxman v. Bd. of Educ., 91 F.3d 1547 (3d Cir. 1996).

And it may be that even a minority-focused fellowship can only consider race as just one factor, meaning that disadvantaged whites may also need to be considered. (See arguments in the Rudebusch case).
11.14.2006 12:19pm
James R Dillon (mail):
The New York firm that I used to work for does something essentially identical, though without the third-year stipend. As far as I know, it never occurred to anyone at that firm that this might be a Title VII problem. I'm not an employment law expert either, but if a new employment position is created specifically for the purpose of employing minorities, does that count as a quota? It isn't the case, after all, that slots that would have been open to non-minorities are being reserved for minority candidates only; instead, an entirely new position is being created that, but for the desire to employ more minorities, would never have existed in the first place. So it's not as if non-minority candidates are being denied the opportunity to compete for positions that otherwise would have been open to them. I don't know if that makes a difference under the federal employment law, but it seems like it should be relevant.
11.14.2006 12:23pm
MnZ (mail):
Clients may demand minority attorneys, but race cannot be a bone fide occupational qualification under current law, as I understand it.


I understand that employment discrimination based on race to please racist clients was never a valid defense. I doubt that this has changed.
11.14.2006 12:25pm
Virginia:
Wow, a blatant "no whites need apply" rule! Usually they sugar-coat it a bit, but not this time. I think a lot of firms/schools/etc. took Grutter as carte blache for open quotas, Justice O'Connor's protestations to the contrary notwithstanding. It will be interesting to see if MCRI, and hopefully some favorable decisions from the Supreme Court this term, force them to retrench, or at least to start lying again.
11.14.2006 12:26pm
Redman:
K &E did only one thing differently from hundreds of other law firms filling thousands of other jobs all over the country . . . they put their policy in writing.
11.14.2006 12:28pm
DavidBernstein (mail):
Hans, it seems pretty clear from the fellowship announcement that K &E is not looking at any of the factors you mention, but just imported all federally designated minority categories into the program.
11.14.2006 12:31pm
J. F. Thomas (mail):
Of course there is no racial purity test in the U.S. Anyone can claim to be a minority and apply for the scholarship, so what's the problem. Except for Native American status, membership in any ethnic group is completely self-identified. You can put anything on the form you want, there isn't even a perjury penalty statement like there is on almost every other government approved form you fill out. You don't even have to be consistent from job to job or form to form. I used to refuse to fill out the form until I found out that if I didn't someone would classify me based on what I looked like. Now I alternately choose White or Asian depending on my mood (I am 1/4 Asian). Considering that the anti-miscegnation laws in most of the south defined "colored" as a "single drop" of "non-white" blood, most Americans can probably safely consider themselves "non-white".

The government's classifications don't even make any sense. Brazilians aren't hispanic (because they don't speak Spanish), nor are they white (because they're not from Europe), and non-spanish speaking indegenous people of South America do not fall into any of the categories, either do mixed race people.
11.14.2006 12:39pm
Cornellian (mail):
I think a lot of firms/schools/etc. took Grutter as carte blache for open quotas, Justice O'Connor's protestations to the contrary notwithstanding.

If they took Grutter that way, they're wrong, since law firms are private actors, and Grutter applies only to state actors.
11.14.2006 12:41pm
Carolina:
Wow. They didn't even use any euphemisms like "Preference given to those from disadvantaged backgrounds." It's a straight-out "Caucasians are not eligible for this position." Someone who reads VC has to have a friend at K&E, they need a heads up.

I have no experience with K&E, but at the firms where I worked or was a summer associate, hiring/recruiting was always handled by a non-lawyer. Lawyers did the interviews, the hiring program was under the supervision of someone without a JD. I would guess whoever this person is at K&E got a brainstorm and didn't run it past the employments lawyers.
11.14.2006 12:41pm
BGates (mail) (www):
James, suppose I found a law firm to lift up the White Race. All positions at the firm are to provide employment for white people; they are entirely new positions that, but for the desire to employ more white people, would never have existed in the first place. So it's not as if minority candidates are being denied the opportunity to compete for positions that otherwise would have been open to them.

Will you represent me when the EEOC comes a-calling?
11.14.2006 12:49pm
Doug Sundseth (mail):
I find fascinating the responses to the effect that someone should tell K&E to hide this before anyone finds out that they're running a racist employment program. Hmm, perhaps that should be, "I find disgusting...".

Is it your position that it's just peachy for them to be bigoted, as long as they hide it well enough?
11.14.2006 1:01pm
Carolina:
Found this on Kirkland's web site:

"We are amazed by the accomplishments and intelligence of the students who apply for this fellowship," said Walter H. Lohmann, Jr., co-chair of the Firm's Diversity Committee and a partner in the Firm's Washington, D.C. office. "It is our pleasure to welcome these 11 recipients to the Kirkland community."

I checked his bio, and unsurprisingly, Mr. Lohmann "leads the Firm's Environmental Transactional Practice Group." His co-chairman, Eunu Chun, "concentrates his transactional practice in the private equity/leveraged acquisition group."

As far as I can tell from a breif glance at the bios, NONE of the sixteen lawyers on the firm "Diversity Committee" has a background in employment law.

Commitee members listed here:

http://www.kirkland.com/ourFirm/diversity.aspx
11.14.2006 1:07pm
Thorne (mail) (www):
What's most relevant to this discussion is 29 CFR Part 1608 which includes the following:


Congress enacted title VII in order to improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place.


The regulation specifically addresses the issue of reverse discrimination:


Any uncertainty as to the meaning and application of title VII in such situations threatens the accomplishment of the clear Congressional intent to encourage voluntary affirmative action. The Commission believes that by the enactment of title VII Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement. Such a result would immobilize or reduce the efforts of many who would otherwise take action to improve the opportunities of minorities and women without litigation, thus frustrating the Congressional intent to encourage voluntary action and increasing the prospect of title VII litigation.


So, while we commonly think of Title VII as making racial discrimination in employment a thing of the past, the EEOC sees it differently:


Title VII prohibits practices, procedures, or policies which have an adverse impact unless they are justified by business necessity.


The business necessity is that many of the most valuable law firm clients (e.g. Fortune 500 companies) are demanding that their law firms hire and promote more minorities.

And then there's this:


Employers, labor organizations, or other persons subject to title VII may also take affirmative action to correct the effects of prior discriminatory practices. The effects of prior discriminatory practices can be initially identified by a comparison between the employer's work force, or a part thereof, and an appropriate segment of the labor force.


I've talked to a number of Chief Diversity Officers of major law firms, and they say they see no problem with these minority scholarship/summer job programs, given the EEOC's interpretation of Title VII.
11.14.2006 1:10pm
a reader:
Ahh. Sometimes I just love reading this blog. Please keep these comments coming.
11.14.2006 1:14pm
Steve:
It's a summer job, not a permanent position. I wonder if that makes any legal difference.

You can't have a quota in hiring. Can you have a quota in interviewing, though, or in other respects designed to give minorities enhanced opportunities?
11.14.2006 1:15pm
Hans Bader (mail):
Thorne is quite wrong.

There is one argument that no court has EVER accepted for reverse discrimination: business necessity.

The only arguments ever accepted for reverse discrimination are (1) remedying institution's own past discrimination; (2) remedying manifest racial imbalance compared to qualified labor pool; and (in a few situations, like student admissions to colleges) (3) diversity.

As my comments above note, the fellowship probably is illegal, since it does not fall within these exceptions for permissible reverse discrimination. See, e.g., Taxman v. Board of Education, 91 F.3d 1547 (3d Cir. 1996).

The "Chief Diversity Officers" he has spoken to who think that race is a bona fide occupation qualification are thus staggeringly ignorant of what the law entails.

Apparently, being a diversity officer only requires adherence to politically correct dogma, and not knowledge of applicable laws.

If a race-based fellowship is challenged under 42 USC 1981, which permits individual liability, those ignorant "diversity officers" should be held personally liable for the resulting damages and attorneys fees.
11.14.2006 1:19pm
Justin (mail):
Without adding anything more to the discussion, I would caution those who would apply the 14th Amendment to Kirkland and Ellis. Kirkland, though a very large law firm, probably does not qualify as a "state" or "state actor."
11.14.2006 1:21pm
BU06:
There are a lot of these around. E.g., Goodwin Proctor and Fish &Richardson. I'm sure there are many others.

I don't think that construing these programs as special programs outside of the normal hiring process cuts in favor of them not being considered quotas. Indeed, the admissions program invalidated in Bakke was a "special program". If these firms are reserving a certain number of seats for minority students, and the only competition for these seats are other minorities, then it would be a classic case of a racial quota. The program from Fish specifically states that it will award 5 fellowships this year.

It would be interesting to see how many minority students these firms hire outside of the fellowship program. If they want to diversify their workforce, then they should just make more offers to students of color within the normal hiring process. What's stopping them from doing that? Having a separate diversity program is unnecessary and just stigmitizes the recipients.
11.14.2006 1:21pm
Carolina:
Thorne,

The bolded portion you reference addresses "adverse impact" claims, a term of art referring to practices that are not facially discriminatory but are alleged to have an adverse impact on a group. The K&E policy is facially discriminatory.

29 CFR part 1608 goes on to list examples of "appropriate" affirmative action (full quote below). As you can see, none of the examples come anywhere close to actually having positions that caucasians are flatly ineligible for.


"(1) Illustrations of appropriate affirmative action. Affirmative action plans or programs may include, but are not limited to, those described in the Equal Employment Opportunity Coordinating Council "Policy Statement on Affirmative Action Programs for State and Local Government Agencies," 41 FR 38814 (September 13, 1976), reaffirmed and extended to all persons subject to Federal equal employment opportunity laws and orders, in the Uniform Guidelines on Employee Selection Procedures (1978) 43 FR 38290; 38300 (Aug. 25, 1978). That statement reads, in relevant part:

When an employer has reason to believe that its selection procedures have * * * exclusionary effect * * *, it should initiate affirmative steps to remedy the situation. Such steps, which in design and execution may be race, color, sex or ethnic 'conscious,' include, but are not limited to, the following:

The establishment of a long term goal and short range, interim goals and timetables for the specific job classifications, all of which should take into account the availability of basically qualified persons in the relevant job market;

A recruitment program designed to attract qualified members of the group in question;

A systematic effort to organize work and re-design jobs in ways that provide opportunities for persons lacking 'journeyman' level knowledge or skills to enter and, with appropriate training, to progress in a career field;

Revamping selection instruments or procedures which have not yet been validated in order to reduce or eliminate exclusionary effects on particular groups in particular job classifications;

The initiation of measures designed to assure that members of the affected group who are qualified to perform the job are included within the pool of persons from which the selecting official makes the selection;

A systematic effort to provide career advancement training, both classroom and on-the-job, to employees locked into dead end jobs; and

The establishment of a system for regularly monitoring the effectiveness of the particular affirmative action program, and procedures for making timely adjustments in this program where effectiveness is not demonstrated."
11.14.2006 1:23pm
Hans Bader (mail):
The EEOC regulation cited by one commenter above (allowing discrimination when mandated by a "business necessity") provides no basis for creating a race-based fellowship.

The EEOC has never claimed that reverse discrimination is a business necessity.

The Chief Diversity Officers who think it is a business necessity are ignorant of the law and thus unfit to make personnel decisions.

Moreover, even if the EEOC did endorse such a silly argument, it would not matter, because the EEOC's regulations are non-binding interpretive rules, not regulations with the force of law.

The Supreme Court and the federal appeals courts have not hesitated to point that out in refusing to enforce EEOC interpretations that are at odds with civil rights precedent. See, e.g., Garcia v. Spun Steak Co.

By the way, the EEOC itself has repeatedly been held liable by the federal courts for engaging in unlawful reverse discrimination against its own employees.

The EEOC lost a class action in Texas in the Jurgens case, which found it liable for discriminating against white male employees as a class.

It has lost multiple court cases brought by individual white male employees all around the country, such as the Terry case.
11.14.2006 1:28pm
Hans Bader (mail):
The law firm is very likely liable under 42 USC 1981 (which bans racial discrimination in contracts) and perhaps Title VII (which bans racial discrimination in employment).

Justin is right that it does not also violate the 14th Amendment, which only reaches discrimination by a state actor.

But the 14th Amendment is only one of many laws prohibiting racial discrimination.

42 USC 1981 bans racial discrimination by private and public employers alike. See Jones v. Alfred E. Mayer Co. (1968); Runyon v. McCrary (1976).

Title VII reaches both private and public employers. See 42 USC 2000d.
11.14.2006 1:31pm
wb (mail):
I'd like to see an informed comment on the leglity of the fellowship in the situation where the summer intership is absent; i.e., where there is NO emplyment involved.
11.14.2006 1:38pm
wm13:
I am a little puzzled by the claim that this program is illegal. Maybe it violates God's anti-discrimination law, but if, as Thorne plausibly argues, the EEOC thinks it's okay, there doesn't appear to be a human agency that will be challenging the program.

I suppose an individual law student could sue K&E. I don't recommend that as a way to get a job or advance one's career in big law.
11.14.2006 1:41pm
HLSbertarian (mail):
"We are amazed by the accomplishments and intelligence of the students who apply for this fellowship," said Walter H. Lohmann, Jr., co-chair of the Firm's Diversity Committee and a partner in the Firm's Washington, D.C. office. "It is our pleasure to welcome these 11 recipients to the Kirkland community."


Is anyone out there still claiming that these programs aren't horribly patronizing to minorities? A Kirkland partner is "amazed" that minority applicants from Yale Law have such "accomplishments and intelligence" - who'da thunk it?
11.14.2006 1:43pm
Thorne (mail) (www):
RE: Moreover, even if the EEOC did endorse such a silly argument, it would not matter, because the EEOC's regulations are non-binding interpretive rules, not regulations with the force of law.

As I understand it, the CFR has as much force as a statute.
11.14.2006 1:49pm
DJR:
Carolina,

Why isn't this:

"A recruitment program designed to attract qualified members of the group in question;"

or

"The initiation of measures designed to assure that members of the affected group who are qualified to perform the job are included within the pool of persons from which the selecting official makes the selection;"

There is no doubt that the summer associate program at big firms is a "recruitment program," and is the primary way that law school graduates "are included within the pool of persons from which the selecting official makes the seletion."

In any case, as pointed out above, law firms are essentially exempt from employment claims because no law student in his right mind who has the credentials to work at Kirkland would sue a potential employer. Those who are not in their right mind, or who are not qualified will probably file incomprehensible pro se claims that are easily defended.
11.14.2006 2:00pm
JerryM (mail):
Is anyone out there still claiming that these programs aren't horribly patronizing to minorities? A Kirkland partner is "amazed" that minority applicants from Yale Law have such "accomplishments and intelligence" - who'da thunk it?

All that was missing was the 'well-spoken' attribute!
11.14.2006 2:01pm
James R Dillon (mail):
wm13,

I'm a little confused by your confusion-- you appear to back up your suggestion that the practice is legal only with the observation that there are probably no qualified plaintiffs out there who would actually sue over it. Surely the legality, or lack thereof, of the fellowship program doesn't turn on whether any given federal agency or private plaintiff is willing to actually pursue a case against K&E?
11.14.2006 2:02pm
Blindgambit:
Thorne:

That's not correct; some CFR regs are the result of notice and comment rulemaking, and those regs do have some force, "Chevron deference," but are not binding on a court (it's a little more than that- but for shorthand that'll do). Most rules in the CFR (and I don't have personal knowledge of those cited above) are drafted informally and have significance only to the extent they have the power to persuade.

That standard, in a federal court, is pretty meaningless if you think about it. If you believe the reg is a correct interpretation of the statute, then you find it persuasive. If not, the reverse.
11.14.2006 2:04pm
Ragerz (mail):
HLSbertarian,

It is not patronizing at all. I assume you go to HLS, but apparently your having trouble with English. The statement is not that we are "amazed" that the students are "accomplished" and "intelligent," but rather, we are amazed a their particular accomplishments and demonstration of intelligence (sympathetically interpreted, perhaps with respect to solving a particular problem).

Not everyone who goes to HLS or Yale Law has identical accomplishments. Nor do they have identical intelligence, especially with respect to different dimensions and their ability to solve particular problems. So, it is perfectly reasonable for a fellow Yale Law grad to be amazed at the accomplishments of another Yale Law student. It is also perfectly reasonable to be amazed at anothers intelligence, especially with respect to their ability to solve a particular problem, frame an argument in a particular way, respond crisply in trial situations, etc. It is especially reasonable to be amazed at the COMBINATION of unique accomplishments and intelligence of a particular individual.

Clearly, what we have here with respect to your interpretation is a matter of discretion. Your assignment of a "horribly patronizing" meaning to this statement is certainly not required. Not only is it not required, but it is far from the most plausible interpretation.

Somehow I suspect you are a white male with a serious chip on your shoulder. Which is amazing, because you apparently were lucky enough to attend HLS. Here, you are stretching to turn a compliment directed at particular minority individuals and transform it into an insult. Somehow, I suspect you really don't have the best interests of the individuals that you rush to "defend" at heart, when proceeding with your warped interpretation.
11.14.2006 2:06pm
frankcross (mail):
Thorne's wrong, for reasons given. Business necessity only applies to disparate impact cases. For disparate treatment cases, such as this one, the exception is BFOQ. For which there is no argument.

Well, there's the non-enforcement excuse. K&E is very plugged in to conservative Washington and the DoJ, so that could help.
11.14.2006 2:08pm
Bryan DB:
"EEOC's regulations are non-binding interpretive rules"
Really?
I'll have to remember that next time a client is hailed into court for violating a regulation. No doubt the court will readily dismiss the case since the regulation is only an interpretation of a statute.
11.14.2006 2:08pm
Blindgambit:
Brian:

I think you're being a little melodramatic. If you're not challenging the reg, then it'll be binding on you. The suggestions made in this thread are that the regulation, to the extent the EEOC has intepreted it to permit reverse-discrimination, is incompatible with Title VII and thus, if challenged, would not be upheld as binding.
11.14.2006 2:12pm
Houston Lawyer:
I love the term "Chief Diversity Officer". A position clearly defined in order to ensure that the most qualified person is not hired. It belongs up there with the "Prince of Insufficient Light".

Shouldn't they be required to disclose what characteristics they give extra points for. It could read like a Master Card commercial: Passing over 20 white guys to find the appropriately diverse candidate --- priceless
11.14.2006 2:14pm
Thorne (mail) (www):
RE: whether CFR is binding:

The regulations are treated by the courts as being as legally binding as statutory law, provided the regulations are a reasonable interpretation of the underlying statutes. This "reasonable interpretation" test or Chevron doctrine was articulated by the U.S. Supreme Court in a unanimous decision (6 voting, 3 recused) involving a challenge to new Clean Air Act regulations promulgated by the Reagan administration in 1981. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc..[1]
11.14.2006 2:15pm
HLSbertarian (mail):
Ragerz:


The statement is not that we are "amazed" that the students are "accomplished" and "intelligent," but rather, we are amazed a their particular accomplishments and demonstration of intelligence (sympathetically interpreted, perhaps with respect to solving a particular problem).


"Amazed" indicated surprise - either because their applicants' "accomplishments and intelligence" are above their expectations of Yale law students or of minority Yale law students. Since it's not very plausible that a Kirkland partner is unaware of the general level of accomplishment among the Yale Law student body, I think the patronizing reading is quite plausible. Also, he's talking about applicants who ahve not yet worked for the firm, so I don't see why you go on about "trial situations, etc."



Somehow I suspect you are a white male with a serious chip on your shoulder. Which is amazing, because you apparently were lucky enough to attend HLS. Here, you are stretching to turn a compliment directed at particular minority individuals and transform it into an insult. Somehow, I suspect you really don't have the best interests of the individuals that you rush to "defend" at heart, when proceeding with your warped interpretation.


You assume quite a bit. You know what they say about assuming...


I assume you go to HLS, but apparently your having trouble with English.


Wow...
11.14.2006 2:16pm
Blindgambit:
Thorne:

Again, I think the suggestion is that the EEOC's intepretation, to the extent it permits reverse-discrimination of the sort discussed, is not a reasonable interpretation. In addition, the Chevron standard only applies to notice/comment rules. Rules adopted in other fashion receive only Skidmore deference, or deference to the extent they have the power to persuade. Christensen v. Harris County, 529 U.S. 576, 587(2000).

I'm not familiar with the regs cited above, so I don't know if those are notice/comment rules or not. Regardless, I think the point some comments are making is that the EEOC's interpretation is unreasonable.
11.14.2006 2:21pm
Thorne (mail) (www):
RE: Again, I think the suggestion is that the EEOC's intepretation, to the extent it permits reverse-discrimination of the sort discussed, is not a reasonable interpretation.

This is fascinating. If the EEOCs regs are unreasonable, then what possible justification can there be for what law firms are doing?

I just can't imagine that a whole bunch of the biggest law firms around have decided to say, "the heck with the law."

If you could, please take a look at this post about the minority scholarship program at Thompson Hine:

http://misterthorne.org/blog_lfd/?p=153

If I'm mistaken in the meaning of 29 CFR Part 1608, then how can law firms justify their programs?

Thanks.
11.14.2006 2:29pm
Mike BUSL07 (mail) (www):
Ragerz,

whatever the, (IMO, dubious), merits of your position on HLS's comment, your tone is wee bit out of line. Given that his interpretation is, at least, a perfectly reasonable alternative to yours, I fail to see why it wounded you so deeply as to compel unprovoked ad hominem attacks.

To keep running with the "patronizing" theme of this thread, I think you ought to learn to handle disagreement without attributing to your opponents' words an insidious purpose; without angrily revealing your emotional state... Put another way, grow up.
11.14.2006 2:33pm
Ragerz (mail):
HLSbertarian,

You illustrate my point about your flawed interpretation. You assume that they are referencing the "general level of accomplishment" with respect to Yale Law students, rather than the particular accomplishments and particular intelligence of the particular individuals they worked with.

I further assert that you have a problem interpreting English. If I am talking about "general level of accomplishment" I would say, I am amazed at how "accomplished" and "intelligent" you are. If I am talking on a more particular level, I would use "accomplishments" and "intelligence." That is basic English, Mr. HLS.

To end our review of English, I did not say that I "assume" you are a white male, I said I "suspect" you are a white male. In other words, I think the probability is high, but am perfectly aware this could be incorrect. I am not taking your white maleness as a given (or assuming it) for the purpose of analysis. So, that is another distinction for the day. "Assume" is not the same as "suspect," just as "accomplished" is not the same as "accomplishments." (By the way, I note that you do not deny you are a white male, thus my suspicions remain.)

Overally, your interpretation is NOT plausible. Here you are warping a compliment and trying to turn it into an insult, in the process mangling the default understanding that one with a firm grasp of English should have. I think your interpretation says more about YOU, than it does about the person you purport to interpret.
11.14.2006 2:35pm
Mike BUSL07 (mail) (www):
Ragerz,

if this was not a minority recruitment program, do you honestly think that the "amazed" comments would have been made? I certainly don't. It would have been something like, "the fellows did important work in blah blah blah." Nobody would feel the need to stress that they are "just as good." That said, I think you view is plausible. I think your insistence that the contrary view is NOT plausible, is silly and willfully blind.
11.14.2006 2:44pm
HLSbertarian (mail):
Ragerz:


You illustrate my point about your flawed interpretation. You assume that they are referencing the "general level of accomplishment" with respect to Yale Law students, rather than the particular accomplishments and particular intelligence of the particular individuals they worked with.

As I already tried to point out, the partner's comment was about applicants, not individuals with whom the speaker had worked. Past that, I really don't feel like getting into a semantics shouting match. I believe my interpretation is perfectly sensible, I've defended it, and I'll let people agree or disagree.

I'll only add that I don't understand the fixation on whether or not I'm a white male. Would this make my opinions less valid? Would it explain them away because everything I say would now be tinged with centuries of social privilege? Are comments by white males about minorities inherently suspect for secret racism? (If it helps you decide my secret intentions, I'll freely admit that I am a white male, though by no means one from any tradition of social privilege.)

Past that, I'll just thank Mike for his (as usual) succinct and sensible comment and leave it at that.
11.14.2006 2:48pm
Ragerz (mail):
Mike BUSL07,

You are incorrect that his interpretation is "perfectly reasonable." Indeed, it is far from equally plausible. At most, I would say it is extremely implausible, given the context of a compliment and the use of language tending to refer to the particular rather than the general.

With respect to me "suspecting" certain attributes about Mr. HLS, I think that the qualifier "suspect" made it clear that this was speculation and that I was aware that it was speculation. I think that such speculation is grounded in puzzlement concerning HLSbertarian's warping of a compliment into an insult by mangling the English language. Most individuals are not looking to turn compliments into insults. That HLSbertarian is, at the very least, says something interesting about him. That you think that HLSbertarian's interpretation is "perfectly reasonable" says something about you as well. Do you not understand English? Or do you have the same tendency to look for insults when compliments are clearly intended? Alternatively, you are sensitive towards what you consider the ad hominen nature of my comments. But you neglect that the ad hominen nature of HLSbertarian's interpretation, which implies that Mr. Lohmann is racist. What else do you call it when someone is "amazed" that minorities are "accomplished" and "intelligent" in general? So, why do you comment on the supposed ad hominen nature of my comment but HLSbertarian's???
11.14.2006 2:52pm
Mike BUSL07 (mail) (www):

Do you not understand English?

It's touch-and-go, but I carry a dictionary with me.

What else do you call it when someone is "amazed" that minorities are "accomplished" and "intelligent" in general?

That's what Lohmann said, right? I'd call that patronizing.

So, why do you comment on the supposed ad hominen nature of my comment but HLSbertarian's???

You suggest, with the subtety of a sledge hammer, that HLSbertarian's opinion is discredited because he is a racist individual. That's an ad hominem attack because it aims to discredit the speaker, not the words. HLSbertarian's comments on the other hand, seek to discredit the words. His argument is plausible regardless of who the speaker is. Despite your unrivaled command of the English language, you inadvertently missed this fairly obvious distinction.

That being said - I have to go outline. It's that time of year. HLS, thanks for your kind words.
11.14.2006 3:05pm
wm13:
James Dillon:

In my (extremely legal realist) world, an action or practice that will never be prevented or punished by any court or other governmental body is legal.
11.14.2006 3:19pm
Federal Dog:
"I assume you go to HLS, but apparently your (sic) having trouble with English."


Yikes!
11.14.2006 3:31pm
Thorne (mail) (www):
Layman that I am, this portion of Title VII seems to make it a crime for a law firm to advertise a program that offers a summer job to a law school student that is limited by race:


It shall be an unlawful employment practice for an employer . . . controlling apprenticeship or other training or retraining, including on-the-job training programs . . . to print or publish . . . any notice or advertisement relating to employment by such an employer . . . or relating to
admission to, or employment in, any program established to provide apprenticeship or other training. . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.


A summer job with a law firm is on-the-job training, is it not?
Anyone knowledgeable about these things care to comment?
11.14.2006 3:32pm
frankcross (mail):
Thorne, the EEOC rules are perfectly binding, they just don't say what you think. They are only talking about disparate impact discrimination (which applies absent any evidence of an intent to prefer one race, etc.) Here, there is express evidence of intent and no business necessity defense at all.

How can the law firms justify this? They aren't forced to. It's not actually that unusual for institutions occasionally to violate the law. K&E doubtless figures that the PR benefits of its program exceed whatever risk of liability they would face.
11.14.2006 3:37pm
Thorne (mail) (www):
Now, following up on my most recent post RE Title VII, this section from 29 CFR Part 1608 seems to say just the opposite of what Title VII says:


c) Limited labor pool. Because of historic restrictions by employers, labor organizations, and others, there are circumstances in which the available pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited. Employers, labor organizations, and other persons subject to title VII may, and are encouraged to take affirmative action in such circumstances, including, but not limited to, the following:

(1) Training plans and programs, including on-the-job training, which emphasize providing minorities and women with the opportunity, skill, and expericence necessary to perform the functions of skilled trades, crafts, or professions;


Whew!
11.14.2006 3:40pm
Jim Rhoads (mail):
Thorne:

Welcome to the mysteries of employment law.

You ought to consider some formal law schooling.

frankcross:

Bingo. You broke the code.

For others debating the issue:

This is a potential violation without a victim or damages.

The EEOC is unlikely to take action on any charge that might be filed.

Only a ideologically motivated public interest firm would take such a case, maybe asking for injunctive relief to prevent clear racial discrimination. But finding a harmed plaintiff with Article III standing would be difficult.

K&E would be only too happy to defend this case with all of the attendant publicity which would surely ensue. That publicity, in turn, would be sure to attract some minority candidates, and would be impressive to Fortune 500 clients who are demanding better performance in minority recruiting.

Defense costs would be minimal because it would be handled in house, and be good training for a group of associates involved in a matter of public interest.

All in all, a good investment for K&E with little downside.
11.14.2006 3:54pm
Mike BUSL07 (mail) (www):
Jim Rhoads:

All in all, a good investment for K&E with little downside.

Unless of course a white applicant is rejected, thereby acquiring Art. III standing, and then sues and wins, putting an end to K&E's program. Sure, they'll still have fought "the good fight," but that's an outcome I can live with, as long as this kind of thing is made illegal in the end.
11.14.2006 4:00pm
Potential Client (mail):
I doubt Kirkland and Ellis would want to face litigation over this, at least if the litigation will result in defeat. Don't clients want law firms that will ensure through their advice that the clients are on the right side of the law? If a firm can't keep itself on the right side of the law, I don't trust it to give me legal advice. Also most respectable clients want a law firm that exhibits the highest ethical standards. If I conclude that the firm is breaking the law, but just figures that no one will bother suing them, that firm is off my list. And would a client want to hire a firm to do employment law if the firm is losing an employment law lawsuit?
11.14.2006 4:42pm
Thorne (mail) (www):
Jim Rhoads, Frank Cross: thanks for helping me understand this. Much appreciated. I suspected the "we know it's against the law, but what's anyone going to do about it?" justification.

But I'm still hooked on one of the three reasons that justify voluntary affirmative action, according to the EEOC.


c) Limited labor pool. Because of historic restrictions by employers, labor organizations, and others, there are circumstances in which the available pool, particularly of qualified minorities and women, for employment or promotional opportunities is artificially limited.


Given that, can't a law firm justify violating Title VII by just arguing that past events and policies have kept minorities out of higher education and the practice of law?
11.14.2006 4:48pm
GMUSL 3L (mail):
Thorne, maybe in the past. Given the ages of Summer Associates, I don't think that the pool for employment is any longer artificially limited -- both the minority and non-minority applicants have had the opportunity to the same high schools, colleges, and law schools without benefit of race-based bars.

(I admit that there is a theoretically possible exception for an extremely old law student who had gone to a de jure segregated elementary school, but unless presented with evidence to the contrary, I think it's safe to assume that those people don't exist in the context of applicants for summer associate positions)
11.14.2006 5:28pm
Anonanonanon (www):

Unless of course a white applicant is rejected, thereby acquiring Art. III standing, and then sues and wins, putting an end to K&E's program.


What white 3L applicant wants to alienate himself among all BigLaw firms by being a plaintiff against one?

Has any Title VII plaintiff against a BigLaw firm ever worked in BigLaw again?
11.14.2006 5:43pm
Anonymous Hippopotamus (mail):
The Supreme Court recognized that an employer's adoption of legitimate affirmative action plan is a defense to a disparate treatment employment discrimination case in Johnson v. Santa Clara County, 480 U.S. 616. That case is probably somewhat distinguishable from what Kirkland's doing -- Santa Clara County essentially let sex serve as a plus factor in hiring women for certain positions, rather than completely setting aside certain jobs for people of a certain race -- but Kirkland still has some sort of affirmative action defense argument that this is legal.
11.14.2006 5:47pm
Mike BUSL07 (mail) (www):

What white 3L applicant wants to alienate himself among all BigLaw firms by being a plaintiff against one?

To say that it's a highly risky thing to do, is not to say that no one will do it. You might not have a line of plaintiffs going around the block, but there is always a brave soul. One possibility is that someone with good qualifications , who actually wants to work for, umm, Institute for Justice, would apply, knowing he will be rejected.
11.14.2006 5:48pm
Jim Rhoads (mail):
Mike:

We are now arguing about a K&E business decision that has been firmly made. I was positing one rationale for a "damn the torpedos full speed ahead" approach.

Having practiced in large firms at the associate and senior partner level, I can almost assure you that someone (probably someone very able) in the employment law section has vetted this program and advised the firm's management committee about the state of the law and the risks of litigation relating to the program.

With the American Bar Association so committed to diversity and to encouraging the education, recruitment and promotion of minority lawyers, this issue has become a cause celebre'. K&E clearly wants to present itself on the "correct" side of the issue.
11.14.2006 6:13pm
Mike BUSL07 (mail) (www):
Jim,

Your point that I can hardly posit my quasi-informed hunch against the product of folks at K&E employment dept is well taken. I guess what I'm really saying is - I hope they get sued. Not to reignite a debate that's taken place on the VC a number of times, but these types of programs shouldn't be legal, (at least as long as the discrimination is allowed in only one direction.)
11.14.2006 6:25pm
frankcross (mail):
Thorne, your subsection c) is indeed relevant but not enough to save this program. It is a justification for affirmative action (such as affirmatively seeking out minority applicants and giving them some preferential treatment), but not for an absolute bar on hiring. These facts are quite a bit like those in Weber, where a liberal Court made pretty clear their could be no absolute bar on whites.

I'm wondering if they might have a way to argue that the beneficiary is not a covered employee under Title VII?
11.14.2006 6:30pm
jah:
I'm guessing that Thorne's right: summer internships are considered recruitment programs and their associated hiring practices are treated with less scrutiny than those for permanent positions.

By the way, K&E, and law firms, aren't alone in reserving some internship programs for minority applicants. Look up SEO
11.14.2006 6:53pm
Ragerz (mail):
Mike and HLSbertarian,

To clarify, I never said or implied that HLSbertarian was a racist. I don't know how you came up with that, Mike.
11.14.2006 7:17pm
Ugh (mail):
The EEOC regulations and Title VII aside, if I had to guess I would say the K&E fellowship violates its own policies on equal employment opportunity, not that you can sue on that basis, AFAIK.
11.14.2006 7:37pm
Andy Freeman (mail):
> All that was missing was the 'well-spoken' attribute!

They also missed "credit to their race".
11.14.2006 8:04pm
r78:
Thanks again to Mr. Bernstein for standing up for all the white attorneys out there.

Keep your eye on the prize, dude.
11.14.2006 8:10pm
Toby:
Pay, tell, r78. What is the prize? In words, not by vague evocation?

Is it that all men are created equal?

Is it instead that every position in society be a racial spoil?

What is the rpize?
11.14.2006 8:27pm
Avery Katz (mail):
I teach at a law school at which Kirkland and Ellis regularly recruit, and I am quite sure than most of our minority students would find the "amazed" language to be condescending. Ragerz, if you are a partner at K&E or at any major law firm [which I somehow suspect you are not], I recommend that you ask any of your partners who happen to be minorities if they find it condescending. Or better yet, since your partners may be reluctant to offend you, ask your PR department to check with any experienced recruiting expert.

It is also interesting that you believe you understand English better than any of the other readers of this blog who have taken issue with your interpretation. Perhaps you are the editor of a dictionary or a style manual, as opposed to a law firm partner? If so, perhaps you might consult members of your usage panel for their opinions.
11.14.2006 8:27pm
Jim Rhoads (mail):
Mike:

I suspect that the intern program is something more (as, in addition to) than the summer associate program. If I were advising K&E, I would counsel opening this program to economically disadvantaged individuals from pockets of poverty in Appalachia, Native American Reservations, and other locations in which they have offices. It would improve diversity and likely not diminish the impact on African American youngsters.
11.14.2006 9:44pm
Mike BUSL07 (mail) (www):
Ragerz, I reluctantly respond to you again. You ask why I inferred that you accused HLS of racism. It's this statement:

"Somehow I suspect you are a white male with a serious chip on your shoulder."

Shall we now have another discussion about "plausible interpretations," or is this one sufficiently unambiguous?
11.14.2006 9:48pm
Mike BUSL07 (mail) (www):
Jim, I agree - that would be the right thing to do.
11.14.2006 9:51pm
Ragerz (mail):
I think it is obvious that a white male could have a chip on his shoulder concerning the subject of affirmative action and yet not be racist.

Both you and HLSbertarian are guilty of poor interpretation.
11.14.2006 10:09pm
Mike BUSL07 (mail) (www):
I give up.
11.14.2006 10:14pm
Ragerz (mail):
Mike,

Good. I am glad that you acknowledge that you are obviously wrong.
11.14.2006 11:37pm
Houston Lawyer:
Shouldn't K&E be banned from recruiting at all law schools for violating those schools' policies against racial discrimination in hiring?
11.15.2006 9:43am
A.C.:
In response to Avery Katz and everyone else who has written on the veiled insult thread...

I agree wholeheartedly that the statement in question is patronizing and offensive. I'm not sure if it is patronizing on the grounds of race or ethnicity, even if the word "amazed" is suggestive in the current context. It might just be the kind of patronizing you see when a bunch of old law firm fogies try to evaluate the achievements of much younger and less experienced people, but the tone is "look at me on high, being conspicuously nice to the little people." That pisses off plenty of folks who aren't members of minority groups.

There are some code words that you often find in this kind of backhanded insult. We all know about "articulate" and "credit to his race." But "accomplished" and "accomplishments" also have a history, particularly in how men have patronized women in the past. An accomplished woman spoke some French, played the piano, and possibly painted a little or embroidered pillows. Even these activities weren't taken as seriously as comparable activities by men, of course -- she probably didn't perform or exhibit publicly or sell her work -- and she certainly didn't go to law school and compete with her brothers.

Using the word the way it was used in this situation suggests that the people being discussed aren't entirely serious, or even that they are only present as ornaments rather than as real competitors. But then, the whole set-aside thing (especially when combined with a business necessity argument) suggests that.

At some point the American elite is going to have to make a decision -- admit that it is bigoted and exclusionary, or stop being bigoted and exclusionary for real. At the moment it seems to be trying to have things both ways.

Back to the insult itself -- there's a simple way to avoid insulting people inadvertently (assuming it was inadvertent) in this way. Don't talk like the lord of the manor in a 19th Century novel. And try not to think that way either.
11.15.2006 9:52am
Birdman2 (mail):
I wonder why no one else has picked up on the incoherent, Orwellian phrase "one diverse student" as used in the K &E announcement.
11.15.2006 2:07pm
Mike BUSL07 (mail) (www):

"one diverse student"

Some people are just more diverse than others - no doubt about that. Good call.
11.15.2006 2:18pm
PatHMV (mail) (www):
Birdman, that's because we've long since been programmed to understand that "diversity" = "minority". The doublespeak has gotten to us already.

I have a friend who is a very successful attorney. Highly competent, very aggressive, I'd want him on my side in a legal battle, and I would hate to be deposed by him. He's black. One of his biggest pet peeves in this world is for someone to refer to him as being "well-spoken" or "articulate". I can't say for sure, but I think he would find the "amazed at your accomplishments" speech to be quite offensive.
11.16.2006 10:23am
Mary Katherine Day-Petrano (mail):
Non-white's cannot apply for a "diversity" fellowship at Kirkland &Ellis? And then we have a whole thread that mentions every conceivable minority group except the DISABLED??? And since when is the "non-whites" category void of disabled people? Further, since when does "diversity" exclude the disabled? Mansakes alive, if I were a law student, I would trot right down to the federal court up there and sue K &E for violating the Americans With Disabilities Act!! And,please folks, and Volokh thread writers, when you talk about "diversity," please do not leave qualified individuals with disabilities out of the discussion. If "diversity" does not include disabled folks, who does? It just isn't right.
11.18.2006 10:37am
Mary Katherine Day-Petrano (mail):
It's also illegal, see 42 U.S.C. Secs. 12101 et seq.
11.18.2006 10:42am