Tuesday, May 14, 2013

Reason #1,352 Why Affirmative Action is Still Needed: SCOTUS Saw 1 Black Lawyer During Entire Term

We are, at this moment, what I suspect is perhaps a week away (give or take a day) from the Supreme Court's decision in Fisher v. University of Texas which many Constitutional scholars (including yours truly) expect will be the end of Affirmative Action in higher education.  Well, for public schools anyway.  Private colleges will, of course, still be able to practice whatever Affirmative Action programs they wish no matter what the Court decides in Fisher.  But stepping back from that case for a moment, the bigger question that Fisher and other Affirmative Action cases have been trying to grapple with for the past 30-40 years is whether or not Whites and other minorities in this country are on an even playing field today.  And the answer that we keep coming back to time after time is: not really.  Don't get me wrong, we've come a long way.  We've made important strides.  We even elected a Black President which, in the minds of many Whites, is the sine qua non that racism is over in America...even though many of those same Whites spent the next 4 years actively tearing down the first Black President through personal attacks which had nothing to do with policy.  But hey, let's not focus on the negative right?  We've progressed a great deal as a nation when it comes to race relations.  This is true.  Nevertheless, despite this progress the numbers do not lie:

Per AP:
In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.
The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.
Women were better represented, accounting for just over 17 percent of the arguments before the justices.
In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.
The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients' cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.
The numbers generally reflect the largely white and male upper reaches of the biggest and richest private law firms, where there have been small gains by women and minorities in the past 20 years. A recent survey by the Association for Legal Career Professionals found that more than 93 percent of partners in law firms are white and nearly 80 percent are men.

Welcome to my world.

As some of our frequent readers already know, I just so happen to be an attorney working in one of those big law firms that the above-article was talking about.  But what you may not have known is that out of all of my firm's hundreds of attorneys at all of its offices from Europe to the U.S., I am the only Black attorney.  Yes, you read that correctly.  I'm the only one.  As in, if I were to leave tomorrow, there would be no Black attorneys at my firm.  And before you pass any judgments about my firm specifically, you should know that this is the case at the majority of the law firms in America. Don't take my word for it, just visit the NALP Directory which keeps statistical data on all of America's law firms and see for yourself.

Even here in the super-diverse New York City legal market where I practice, it is quite common to see maybe 4 or 5 Black attorneys out of a firm of 4 or 5 hundred attorneys.  And, by the way, those 4 or 5 attorneys will be low-level salaried workers known as associates, not the high-level partners who actually share in the equity of the firm's profits.   Many of the Am-Law 100 Firms have merely one (1) or two (2) Black partners amongst their ranks.  A good number of these firms have zero (0) Black partners.  Need more proof?  Let us consider the the number of Black attorneys in the top 10 firms in America:

Associates = "A"
Partners = "P"
  1. Wachtell (New York, NY) # of Black A's: 5 out of 131; # of Black P's: 1 out of 81
  2. Quinn Emanuel (Los Angeles, CA) # of Black A's: 2 out of 358; # of Black P's: 1 out of 168
  3. Cahill Gordon (New York, NY) # of Black A's: 6 out of 223; # of Black P's: 2 out of 68
  4. Sullivan & Cromwell (New York, NY) # of Black A's: 12 out of 536; # of Black P's: 3 out of 176
  5. Cravath (New York, NY) # of Black A's: 14 out of 292; # of Black P's: 1 out of 87
  6. Paul Weiss (New York, NY) # of Black A's: 15 out of 390; # of Black P's: 2 out of 111
  7. Kirkland & Ellis (Chicago, IL) # of Black A's: 8 out of 284; # of Black P's: 5 out of 311
  8. Gibson Dunn (Los Angeles, CA) # of Black A's: 5 out of 160; # of Black P's: 1 out of 65
  9. Boies Schiller (New York, NY) # of Black A's: 2 out of 127; # of Black P's: 1 out of 111
  10. Cleary Gottlieb (New York, NY) # of Black A's: 28 out of 420; # of Black P's: 3 out of 86
As far as law firm associates go, by the best metric Black lawyers make up just 6% of the associates at Cleary Gottlieb.  On the other end of the spectrum, Black lawyers make up a mere 0.5% of the associates at Quinn Emanuel.  The picture for partners is even more bleak.  The best representation of Black partners also happens to be at Cleary Gottlieb where Black attorneys make up whopping 3.4% of the partnership.  The worst representation prize once again goes to Quinn Emanuel where Black attorneys make up 0.5% of the partnership.  When you consider that Blacks make up 12% of the total U.S. population, it clearly shows that, as a nation, we have not made as many strides as we'd like to think we have.

And before we dismiss these numbers as insignificant because they only pertain to a certain sector of the legal profession, we have to remember that it is precisely this sector of the legal profession which has the largest influence on the legal policies that affect our every day lives.  For example, the law firms mentioned above, as well as the other 90 firms in the Am-Law 100, consistently dominate the docket at the Supreme Court arguing cases that have a direct impact on our rights.  In addition, these firms also lead the way in lobbying Congress on behalf of big business.  Indeed, a good number of the lawyers from these firms become elected officials themselves.  In other words, these law firms have an enormous impact on our nation's policy.  That makes diversity within these firms of critical importance to our nation's prosperity.  Indeed, how can we reasonably expect our nation's policies to be inclusive of minority interests when the very firms responsible for setting such policy fail to practice inclusion themselves?

This is usually the part of the debate where somebody raises the argument that law firms actually do care about diversity but there simply aren't any qualified Black law students applying for the job.  Let me provide you with a behind-the-scenes exclusive on this point.  Every year approximately 40,000 people are admitted to America's law schools.  Of these 40,000, approximately 3,600 (9%) are Black (source at p. 9).  If all things were equal, we would expect to see this same percentage hold as Black law students transition into becoming Black law firm associates.  However, as the above-referenced numbers indicate, that 9% drops down between 0%-6% when it comes to Black law firm associates, and even less when it comes to Black law firm partners.

Of course, many factors affect the path towards becoming an Am-Law 100 (aka "Big Law") associate: grades, law review, moot court, student leadership, etc.  However, chief among these factors is law school ranking.  Many of the Am-Law 100 firms recruit heavily from the so-called "Top 14" law schools50% of the entering class for America's big law firms will come directly from the Top 14 schools.  When we consider that Black law school graduates make up no more than 6% of Big Law associates, you would think that Blacks must not have a very high representation among the Top 14 law schools.  However, exactly the opposite is true.  Of the 3,600 Black law students enrolled in America's 200 law schools, over 1,260 of them (35%) are enrolled at the Top 14 law schools in the nation (source) .  It is generally understood within the legal profession that mere graduation from a Top 14 law school makes one "qualified" for employment in Big Law (indeed, Yale Law School and California Berkeley Law School do not even give grades and their graduates are among the most sought after by Big Law).  Thus, it is difficult to see how the Am-Law 100 struggle each year to find any "qualified" Black law students when so many of them are located in the very schools where these firms actively recruit.

White men make up roughly 35% of the U.S. population, yet they make up about 90% of the law firm partners at America's largest law firms.  To be clear, I'm not advocating that we institute any kind of quota system to bring either the Black or White percentages into parity with their national averages.  I'm merely pointing out that something is off here and I think it has little to do with merit or qualifications.  We can debate why these racial disparities exist, and we can even debate what the best approach is to dealing with them, but what we cannot debate is that they exists.  And as long as racial disparities exist in America which favor the White male power structure to the exclusion of everyone else, we must acknowledge that the playing field is not even.

blog comments powered by Disqus