The legal profession’s commitment to diversity has a credibility problem.
Since the early 2000s, law departments and law firms have advanced ambitious public initiatives to diversify the legal profession. In law firm power centers, however, the disconnect between public proclamations and empirical reality is staggering.
Figure 1 above indicates that, at more than 250 major law firms, white males overwhelmingly lead practices and offices, direct partner compensation decisions, and sit on executive/management committees (see the gray bars). Lawyers with diverse racial/ethnic backgrounds (blue bars) and female lawyers (green bars) lead diversity programs and associate hiring.
The lack of representation in law firm power centers reflects the central problem with the profession’s diversity and equity initiatives. By and large I’d say these initiatives are not credible. This is true for two reasons:
- Firmwide decisions and resulting actions still predominantly reflect the perspectives of white men (see Figure 1).
- The majority of diversity and hiring initiatives focus on filling the talent pipeline rather than mitigating bias in the business system.
Together these features diminish credibility because they reinforce the status quo. Traditional power centers don’t deviate from past practices that generally served their members well. And although the lived experiences of females and diverse lawyers equip them with different perspectives and solutions, they’re stymied by the fact that too few are located in positions of influence.
In this post and others in the series to follow, I’ll elaborate on the credibility problem and describe what it takes to achieve credible diversity and equity commitments. My readers know hard work is needed to produce meaningful progress. I’d like to encourage them to work hard on structural reform, specifically along a path that facilitates systems thinking through data and statistics. Cf. Randall Kiser, American Law Firms in Transition ch 8 (2019) (emphasizing critical role of systems for implementing and sustaining a firm’s strategy and values); Post 110 (review of Kiser’s book). This approach makes it possible to identify and adjust for the durable historical biases that disadvantage diverse talent.
Misaligned investments in diversity
It is a failure of leadership that diversity initiatives prioritize networking and hiring over structural reform to the business system. In Kiser’s words, “When no system exists to implement an espoused firm goal, as often occurs with diversity and inclusion efforts, that goal is functionally inconsequential and intended to be overlooked and eventually forgotten.” Kiser, American Law Firms in Transition at 199. That is a biting assessment if I’ve ever seen one.
The lack of diversity systems in law gives rise to misaligned incentives and a sequence of disappointing facts about the profession. After you see these facts, you’re hard-pressed to argue we’re taking diversity as seriously as law firm marketing departments would have you believe. The sequence looks something like this:
- Lenders are investing in diverse law students.
- Law schools are investing in diverse talent.
- But law firms are investing in the status quo.
- And law firm clients are reluctant to take action.
It’s true that law firms are focused on building diverse pipelines and seeking diverse law school graduates, and on that front they do relatively well. I wonder how many know African-American law school graduates borrow about $112,000 more to pay for law school (median is about $207k) than White law school graduates (median is about $95k). See AccessLex Institute, “Examining Graduate Lending” at 26 (June 2019).
We can examine how demographic groups are distributed across law schools broadly by looking at four groups: law schools ranked 1 to 14 by U.S. News = “T-14”, those ranked 15 to 50 = “Tier 1,” 51 to 100 = “Tier 2,” and 101 and lower/not ranked = “Tier 3/4”. Figure 2 reports the percentage shares for each group graduating from each tier category. The distributions reveal a stark demographic asymmetry.
Focusing on Black/African-American law school graduates, the data indicate the following:
- 10% (n = 293) are T-14 graduates
- 15% (n = 428) are Tier 1 graduates
- 19% (n = 557) are Tier 2 graduates
- 56% (n = 1,653) are Tier 3/4 graduates
The corresponding percentage shares for White/Caucasian law school graduates are 12% (T-14), 23% (Tier 1), 28% (Tier 2), and 37% (Tier 3/4).
The story looks nearly identical for Hispanic/Latino graduates. What is the relevance? While 10% of all Black/African-American students and 9% of all Hispanic/Latino students are at T-14 schools, 53% of first-year associates in the NLJ 100 come from the T-14. There’s not enough Black and Hispanic students to credibly diversify even a portion of the NLJ 100.
Figure 2 percentages are based on all law students enrolled at ABA-accredited law schools. In contrast, Figure 3 (below) calculates demographic percentages within a given law school tier. Thus 10% of all Black/African-American law students in 2018 were at T-14 law schools (Fig. 2); but at T-14 law schools, only 6% of students are Black/African-American (Fig. 3). These percentages vary because admissions demographics vary by tier. If we don’t take this extra step, we don’t really understand the current state of the diversity pipeline. And obviously, if we don’t understand the diversity pipeline, our diversity efforts lack credibility.
As shown in Figure 3, there’s racial/ethnic diversity at the T-14, but the absolute counts are small (again, as a matter of pure math, much too small to diversify the nation’s large law firms). Tier 3/4 schools, which the large firm market traditionally ignores, is where historically underrepresented groups are most prominent. We already saw that there were 293 Black/African-American students graduating from T-14 schools, which we now see is about 6% of the T-14 as a whole. In contrast, at Tier 3/4 schools, the number rises to 1,653 graduates, doubling representation to 12%.
In short, the push to diversify law schools is creating large segments of mostly diverse students who will earn a law degree, yet have no shot at an interview with a firm that pays enough to pay down their debt. This disparity reflects inequality, and the pattern is destined to continue as long as the profession continues to ignore the math.
What happens in practice
Disappointing facts mount when diverse talent enters large law firms. Prospects for advancement appear to be unequal. How but with an appeal to status quo and privilege can we explain that, in 2019, there are large law firms with zero black partners? See Vivia Chen, “Am Law Firms With Zero Black Partners—How Is This Possible in 2019?,” Law.com, June 6, 2019; Ron Jordan, “Get me Some of Those,” LinkedIn (June 2019). The same goes for firms who, as Paulette Brown observes, win awards for being some of the best firms for diverse lawyers yet have 0.4% African-American partners. See Brown, “What does it mean to be the ‘best’?“, LinkedIn (Aug. 2019).
If you stop and think, it’s hard to square these facts with a sense there’s a credible commitment to diversity. I learned about these results by reading compelling takedowns from diversity leaders in the profession, whose lived experiences enable them to evaluate these issues differently, indeed more objectively.
The reluctance to part ways with traditional practices has far-reaching implications. It explains how elite firms justify their recruiting from only the top-ranked law schools, even though the greatest increase in diverse law school students has occurred among schools ranked 101 or below by U.S. News, and even though law school pedigree is a non-factor in predicting eventual success in the profession (more on this below).
It also explains why, for all the tough talk, there’s not much evidence that law departments are changing their buying behavior based on diversity numbers (albeit there are several exceptions). To be sure, law departments request and collect diversity data, yet far fewer appear to do much with it. Even the strongest diversity proponents hesitate when asked point blank about firing firms.
For example, in a New York Times article on the recent Paul Weiss partner class, a prominent General Counsel and author of the open letter signed by 170 peers was asked if she would fire a firm that employed a white male partner she has long relied on if that firm lacked diversity. Her reply? “I trust him too much, I can’t see walking away.” See Noam Scheiber & John Eligon, “Elite Law Firm’s All-White Partner Class Stirs Debate on Diversity,” New York Times, Jan. 27, 2019.
It’s worth asking what credible diversity commitments look like. With the above sequence of facts, I’ll propose that we’ll need to diversify the perspectives of law firm power centers until we see them on a wide scale. Diverse and female lawyers have navigated the challenges of being marginalized at myriad points from law school to their professional pursuits. They see workable solutions yet lack the influence it takes to enact them.
What would a credible commitment to diversity look like?
A credible commitment begins with a feeling of uncertainty and an uncomfortable truth that allows for authentic conversations about problems.
In legal diversity, this requires a willingness to reimagine a world where privilege is earned and every decision is made through an unbiased lens. Firms will need to own their current status and the biases that underlie it. Going forward, they should have answers to two questions: Why will this diversity initiative work as intended? How would we know?
The best firms who solve this problem will handle diversity matters like scientists who analyze complex systems. I’m fortunate to have experience as a political scientist, where I learned this essentially means developing and testing expectations using data. Since the relevant techniques and examples could span many pages, this post stays at the conceptual level.
In broad terms, structural reform to diversity programs is about (1) changing how law firms select new associates and (2) how they train candidates through their job-related experiences. See Henderson, “Solving the Legal Profession’s Diversity Problem,” PD Quarterly (Feb. 2016). Talent selection and work assignments/training are the two key areas, and both are incredibly well-suited to designing and testing systems.
Selection algorithms can help firms understand their success drivers and act on the predictions. It’s possible to perform diagnostics to ensure the algorithm’s predictions are equitable. Using selection algorithms firms can select the associates who are likely to succeed irrespective of demographics. Simply stated, this is how to get more diversity and more commercial success at the same time.
I had the opportunity to contribute to Malcolm Gladwell’s Revisionist History podcast, see “The Tortoise and the Hare,” Jun. 27, 2019, in which the best-selling author and long-time student of law firm markets explored the inefficiencies resulting from the profession’s reliance on invalid performance indicators. Among other things, we spoke about evidence that a focus on law school pedigree does not help firms hire successful attorneys.
This view was recently echoed by Bradley Gayton, General Counsel of Ford Motor Company, during a podcast conversation with Anand Upadhye. See “The Next Generation GC,” JDSupra, Aug. 29, 2019. Gayton said that when there is an opening at Ford he “jealously guards that opening,” and while law school can be a predictor of success there are many other equally valid predictors that one can rely upon without compromising the characteristics or qualities you are looking for in a lawyer. He goes on to say that “doing the same thing over and over—interviewing at the same schools, looking for the same background—won’t change the results, but looking for other indicators of success will.” Personally, I loved that Gayton acknowledged he graduated from a lower-ranked school, University of Buffalo (SUNY) School of Law (currently ranked in Tier 3), and was hired at a 2L job fair.
With his words, Gayton offers a perspective that is refreshing for its credibility, maybe in large part because he himself is diverse and brings the unique perspective I referred to above.
For my part, I’ve found again and again that applicants’ predictive success scores are statistically equivalent across law school tiers. You probably see the implication for diversity. An accurate algorithm that is properly de-biased can give firm leaders the confidence to hire from many more law schools. When moving out of the psychological comfort zone of law school prestige, firms gain credibility at the same time they increase their ability to hire high-performing diverse talent.
If law firm rankings don’t correlate with long-term success, then how do we get associates who thrive and become partners?
To see the answer, consider a famous study that was published in the American Sociological Review, the field’s top-rated journal. See Forrest Briscoe and Katherine C. Kellog, “The Initial Assignment Effect: Local Employer Practices and Positive Career Outcomes for Work-Family Program Users,” 76 Am. Socio. Rev. 291 (2011). The study showed convincingly that, at an AmLaw 20 law firm, quality work assignments and training early in one’s career dominate all other explanations of success over the long term. So, there’s rigorous empirical support for a famous analogy from David Wilkins: “Training is the Royal Jelly of elite law firms. Those who receive it have a realistic chance of becoming ‘queens’ capable of supporting their own cadre of worker bees. Those who do not are destined to remain worker bees whose usefulness to the hive will eventually draw to an end.” David B. Wilkins and G. Mitu Gulati. “Why Are There So Few Black Lawyers In Corporate Law Firms? An Institutional Analysis,” 85 Cal. L. Rev. 493, 542 (1996).
A credible diversity commitment requires ensuring that training in the form of high-quality work assignments is available across demographics. As it turns out, associates care deeply about their training, which is a defining feature of the best law firm cultures. Cf. Post 086 (reviewing evidence in context of London associate market). Yet, because we are all social creatures with psychological affinities for familiarity, equitable assignments are far from guaranteed. Likability heuristics naturally produce networks composed of similar people, producing what my colleague Kathleen Fredriksen calls the law firm “Mirrortocracy.”
Data and systems enable firms to manage work assignments with rational precision and equity. Firm business is captured by its timekeeping and demographic data, which contains rich information about who is getting which assignments and who is working with whom. In my client work, I’ve used this data to identify prominent/isolated lawyers based on shared work ties, or “networks,” providing actionable information about the distribution of opportunity. Firm leaders can respond to such data on an ongoing basis to ensure an equitable assignment system.
Isolation within an assignment network introduces the risk of disengagement, accentuates unconscious bias, and short circuits profitable business outcomes. This is the flip side of quality training and reaffirms why earning high-quality assignments early in one’s career most strongly predicts success over the long term.
To have credible diversity and equity initiatives in law, diverse and female lawyers must have opportunities to contribute at the highest levels by virtue of their representation in positions of influence. Equally important, we’re going to need leaders from all demographic backgrounds to demonstrate a greater willingness to take uncomfortable risks.
At present, a number of system-level factors presents obstacles that disadvantage historically underrepresented groups. To solve these issues, leaders of law departments and law firms need to place more value on evidence—on employing rigorous, evidence-based programs whose impacts are testable and sustainable. I’ve been fortunate to see some of these in action, and I look forward to sharing more on their frameworks and credibility in future posts.