The Volokh Conspiracy - Defying the Law in the Name of "Diversity":

One thing that continues to amaze me is how major legal institutions, staffed by lawyers who presumably know the law, are consistently willing to brazenly announce their defiance of the law in the name of diversity. It's not that I'm even always opposed to the relevant programs on their merits [and I'm also not one to equate race-based standards for "benign" purposes with the invidious discrimination of the past, even when I don't think a particular policy is wise]; I just wonder when lawyers decided that they were willing to so openly violate the law, and create liability (and other) risk for themselves and their organizations.

We've seen this in the continuing saga of ABA Standard 211, WalMart's general counsel's office demanding that law firms it works with hire and assign based on race, and I recall that law firm diversity initiatives in some cities seemed to require participating firms to meet "targets" for minority hires, but I don't have citations handy.

Even individual law firms seem to be increasingly inclined to step over the line. Consider the follwoing, from Morgan, Lewis's website (couresty of the Law Firm Diversity blog):

Our dedication to improving diversity within our firm is reflected in the goals of our clients. As a global firm that serves a wide array of national and international companies and institutions, diversity is key to our success. We help clients solve problems and address legal issues by drawing upon the strengths of diverse, knowledgeable and skilled teams. In fact, diversity is just as essential a consideration in the selection of our attorneys as industry expertise, relevant experience, cost-effective staffing, and personal chemistry.

Operating on the reasonable assumption* that "diversity" primarily means "racial diversity", is there a plausibleway of justifying such a policy under Title VII? I don't believe that there is any precedent stating that racial preferences in hiring (as opposed to higher education admissions) for "diversity" purposes are a BFOQ [update: indeed, a learned reader reminds me that there is no BFOQ exception for race in Title VII, though there is a narrow one for sex]. If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be?

* "We work hard to develop relationships with law schools, governmental organizations, and undergraduate schools to increase the diversity in our recruitment pool. Morgan Lewis lawyers and staff also participate in and/or sponsor recruitment events for organizations such as the Asian American Legal Defense and Education Fund, the Black Law Students Association, and the National Latina/o Student Conference. In addition, the firm actively recruits at minority job fairs at top law schools all over the country."

[Post edited to make my admitted lack of expertise on Title VII clearer, and also for precision]

UPDATE: In the comments, co-blogger Orin points to this related article by Stuart Taylor. Taylor discusses a recent paper by Richard Sander conluding that (1) minority law school graduates benefit from preferences at major law firms; and (2) such preferences are frequently counter-productive in that they don't result in career advancement for their beneficiaries. I haven't read Sander's paper.

	[David Bernstein, June 21, 2006 at 2:46pm] Trackbacks Defying the Law in the Name of "Diversity": One thing that continues to amaze me is how major legal institutions, staffed by lawyers who presumably know the law, are consistently willing to brazenly announce their defiance of the law in the name of diversity. It's not that I'm even always opposed to the relevant programs on their merits [and I'm also not one to equate race-based standards for "benign" purposes with the invidious discrimination of the past, even when I don't think a particular policy is wise]; I just wonder when lawyers decided that they were willing to so openly violate the law, and create liability (and other) risk for themselves and their organizations. We've seen this in the continuing saga of ABA Standard 211, WalMart's general counsel's office demanding that law firms it works with hire and assign based on race, and I recall that law firm diversity initiatives in some cities seemed to require participating firms to meet "targets" for minority hires, but I don't have citations handy. Even individual law firms seem to be increasingly inclined to step over the line. Consider the follwoing, from Morgan, Lewis's website (couresty of the Law Firm Diversity blog): Our dedication to improving diversity within our firm is reflected in the goals of our clients. As a global firm that serves a wide array of national and international companies and institutions, diversity is key to our success. We help clients solve problems and address legal issues by drawing upon the strengths of diverse, knowledgeable and skilled teams. In fact, diversity is just as essential a consideration in the selection of our attorneys as industry expertise, relevant experience, cost-effective staffing, and personal chemistry. Operating on the reasonable assumption* that "diversity" primarily means "racial diversity", is there a plausibleway of justifying such a policy under Title VII? I don't believe that there is any precedent stating that racial preferences in hiring (as opposed to higher education admissions) for "diversity" purposes are a BFOQ [update: indeed, a learned reader reminds me that there is no BFOQ exception for race in Title VII, though there is a narrow one for sex]. If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be? * "We work hard to develop relationships with law schools, governmental organizations, and undergraduate schools to increase the diversity in our recruitment pool. Morgan Lewis lawyers and staff also participate in and/or sponsor recruitment events for organizations such as the Asian American Legal Defense and Education Fund, the Black Law Students Association, and the National Latina/o Student Conference. In addition, the firm actively recruits at minority job fairs at top law schools all over the country." [Post edited to make my admitted lack of expertise on Title VII clearer, and also for precision] UPDATE: In the comments, co-blogger Orin points to this related article by Stuart Taylor. Taylor discusses a recent paper by Richard Sander conluding that (1) minority law school graduates benefit from preferences at major law firms; and (2) such preferences are frequently counter-productive in that they don't result in career advancement for their beneficiaries. I haven't read Sander's paper.