In his interview with Fox News arguing that the Supreme Court often “must look beyond the Constitution’s text” to do justice (an interview I discussed in my last post, here), Justice Breyer said of the Court:
“We’re the boundary patrol,” Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.
Aside from the rather large question of whether the Constitution allows (commands?) an exception to its general prohibition of racial discrimination in order to produce “diverse workplaces and leadership,” there is also a serious question over exactly what sort of contribution preferential hiring actually makes to “diverse workplaces.”
I have discussed here too many times to cite (Search “Sander” in the search box on the right) UCLA law professor Richard Sander’s extensive and powerful evidence that preferential admissions to selective law schools actually harms its ostensible beneficiaries: they congregate at the bottom of their classes; drop out — and for those who don’t drop out, fail to pass the bar — in much higher numbers than their non-preferred peers. Sander concludes that racial preference in admission to law schools actually produces fewer black lawyers than if there were no such preferences. Then, last July, in an article in the North Carolina Law Review, he extended his analysis to large law firms, where he found that preferentially hired new associates failed to make partner at a much higher rate than their non-preferred peers.
From the summary to that article:
Large law firms use very large hiring preferences for blacks, with the result that blacks are overrepresented among firm hires (relative to their numbers among law graduates) and tend to have much lower grades than their white counterparts…. While many questions are open, the author concludes that aggressive racial preferences at the law school and law firm level tend to undermine in some ways the careers of young attorneys and may, in the end, contribute to the continuing white dominance of large-firm partnerships.
More specifically, Sander states in his Introduction:
I think the most plausible explanation of this paradox is that the use of large preferences by firms leads to disparities in expectations and performance that ultimately hurt the intended beneficiaries of those preferences.
As usual, the power of Sander’s argument is not in his own opinions but in the evidence he produces. In this case he found, not surprisingly, that large law firms generally hire students coming out of law school with very high grades, but they make an exception or minorities that resembles the preferences minorities are given in admission to college and then to law schools. Specifically, only 1 or 2 percent of law school graduates with very high grades are blacks, but blacks make up 8% of new hires at large firms. One survey he cited showed that 46% of black lawyers at large firms had a law school GPA of 3.25 or under, compared with 14% of whites. In addition, other surveys showed that
within a couple of years of starting associate jobs, many blacks and Hispanics have been largely relegated to routine, unchallenging work and deprived of most benefits of training, mentorship, and partner contact.
This could, of course, be because the firms that hired them are racist, but it could also be because, as Sander believes, “the grade gap between whites and blacks in law school is duplicated in performance once inside the firm.” And, I would add, even if grades do not accurately predict ability and later performance, it is certainly possible that the partners assigning the work believe that associates with lower grades will be less able to do what is expected of them. It is not unreasonable to assume, after all, that people who have performed less well than their peers in the past will continue to perform less well now and in the future.
In short, preferential hiring, like preferential admissions, stigmatizes the preferred group (and even those members of that group who did not need the preferences) as underperformers.
Sander’s law firm article, like his earlier law school articles, generated a good deal of notice and comment after it appeared (see here for a selection), and now this controversy has been noticed by the New York Times, which published an article about Sander’s findings several days ago and then a qualifying follow-up and responses to that article yesterday.
Typical of the preferentialist response to Sander is this, quoted in the first article linked above:
James E. Coleman Jr., the first black lawyer to make partner at Wilmer Cutler & Pickering, a prestigious Washington law firm now known as WilmerHale, said Professor Sander was overemphasizing grades at the expense of other qualities like writing skills, temperament and the ability to analyze complex problems.
Coleman’s response — not surprisingly, I guess — is almost an exact reprise of college and professional school attempts to justify the enormous credentials gap between preferentially admitted minorities and the non-preferred. Thus, as I quoted here, when confronted with recent Center for Equal Opportunity reports that document the magnitude of this gap, University of Michigan spokesperson Julie Peterson argued that such data fail to
take into account many important factors considered in admissions, including the rigor of the student’s high-school or undergraduate curriculum, extracurricular activities, essays, teacher and counselor recommendations, and socioeconomic status.
The trouble with Coleman’s downgrading of grades, as with Peterson’s, is that there is no reason to assume these other valued qualities would be so disproportionately possessed by minority applicants.
Perhaps worried that the article about Sander’s findings didn’t sufficiently discredit his argument, the Times on Sunday tried (or at least appears to me to have tried) to soften the blow by publishing something of a follow-up, “Straight ‘A’ Student? Good Luck Making Partner.” It’s argument:
Partners at top-tier firms said grades mattered in hiring first-year associates, who may receive $135,000 a year (not including the bonus). But when deciding whom to make a partner, they said grades were not a factor.
The question, though, is hardly whether law school grades are considered in partner decisions. It is whether grades are a useful measure of knowledge and skills. If they are, it is likely that students who make higher grades are more likely to make partner than those who don’t.
In fact, the question of the usefulness of grades of various kinds pervades the debate over racial preference at every level. Indeed, an academic friend who describes himself (unfairly; I don’t pay him enough) as my “New England stringer” writes of the NYT and other preferentialist coverage of this issue:
The idea is to downplay law school grades or other law school success as a predictor of making partner. This is pretty much like the idea that SAT/high school grades do not predict college success, college grades/GRE/MCAT/LSAT do not predict grad school/med school/Law School success. The whole thing could just be done with a global search and replace. That these totally parallel constructions can be used at all levels undermines the argument at each step of the way.
Yes, they do.