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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.

Choosing Sides 2 (mail):
"Operating on the reasonable assumption that 'diversity' means 'racial diversity...'"

Why is that a reasonable assumption? Especially at international law firms, "diversity" means much more than diversity along racial category lines.

"though I don't have links handy, in major law firms in some cities announcing that they plan to meet a hiring quota for minorities."

I would be interested in seeing evidence to support this statement.
6.21.2006 4:05pm
Ship Erect (mail) (www):
Operating on the reasonable assumption that "diversity" means "racial diversity"

?? What about nationality, economic status, age, sex, political views? Talk about racial paranoia!
6.21.2006 4:12pm
te (mail):


What, are you encouraging those evil blood-sucking plaintiff's contingency lawyers to file more frivolous suits? Shame, shame, shame.

Or are you advocating a new regime of oppressive federal regulations to prevent diversity based hiring? Isn't the government big enough already? What happened to free enterprise? Shouldn't people be able to hire and fire people based on any criteria they choose?

I, for one, am going to stand up right now for all of the large firms in this country and demand that they be permited to not hire white men if they so choose. Who's with me?
6.21.2006 4:13pm
Chris9742:
I'm just an undergrad, so I have no educated way to answer the question; however, if I may venture a guess, would the plantiff have the prove that the wording on the website is indeed true? Could the firm claim that, altough the website stated that diversity was an equally weighted hiring concern, the HR department's hiring practice did not function as portrayed by the firm's website?

This idea stems from my pondering of whether or not diversity statements like these mean anything. I've often debated the merits of not mentioning (implied) ethnic diversity vs. giving lip service to the idea while not actually utilizing it. Pragmatism vs. Idealism, so to speak.
6.21.2006 4:15pm
Tyrone Slothrop (mail) (www):
[QUOTING original post]

That's not what the firm said. They said that the criteria is just as essential, not that it's just as important. Having a pulse is surely essential too, but that doesn't mean that having a pulse and having people actually like you will be weighed equally at those Hiring Committee meetings.

And does anyone truly believe that Morgan Lewis assigns that much importance to diversity in hiring? If so, get a grip.

EDITOR: Okay, I'll let the firm's words speak for themselves.
6.21.2006 4:16pm
percuriam:
I think ML's definition of "relevant minority group" is about as vague as the term "pro bono work" "Pro Bono" can mean any work, legal or otherwise, that we do not bill, but we do through or in conjunction with, a non-profit organization.
6.21.2006 4:22pm
anonymousss (mail):
i dont see anything about quotas in that law.com article. it doesnt say that wal-mart, or the law firms, have a particular number in mind. as for major legal institutions, who are they worried about suing them? what's the risk of a disgruntled would-be associate suing cravath?

EDITOR: I misread something in the article, and so deleted the link. Thanks for pointing this out.
6.21.2006 4:32pm
Hattio (mail):
Besides, they are saying its just as important to have diverse attorneys because of their diverse clients. Whether you agree with them or not, it sounds like they are trying to say that this is a job requirement, for at least some percentage of their work force. I'm no expert on Title VII, but it seems no different than saying at least X % of our workforce needs to be able to lift 50 lbs or more. I'm not saying it makes as much sense, but I'm saying that with the justification, the legal issue may be the same.
6.21.2006 4:42pm
Luke:
The firm is interested in hiring minorities because they are an international firm. I don't know if Bernstein is aware but there are countries where U.S. "minorities" are in the "majority" so chances are they might like to deal with someone who comes from and understands their culture. This is why, for instance, you might hire at least one Chinese lawyer to be on the team that goes to deal with your Chinese clients, for instance. I know, I know, that's crazy.
6.21.2006 4:45pm
M. Lederman (mail):
David: This is much ado about nothing, I think. The Morgan, Lewis statement is pure boilerplate, similar to what virtually every law firm and large corporation in America publicly announces. Moreover, to the extent Morgan Lewis would -- like many other law firms -- provide soft preferences to minority applicants in order to gradually alter its traditional lily-white hue, it's very, very doubtful that the firm is violating title VII. See, of course, Weber and Johnson, and section II of this Brief of the United States (full disclosure: I worked on the brief): http://www.usdoj.gov/osg/briefs/1996/w96679aw.txt

A far, far cry from "brazenly announc[ing] their defiance of the law."

EDITOR: Marty, I agree that Morgan Lewis's policies are likely no different in practice than other firm's, but the language seems less "cautious" than what I'm used to seeing.

Also, is it true that a firm can hire based on race just so not to be seen as lily-white? Even if the firm has no history of discrimination (there are many large firms, including one I was associated with, that have only existed in the era of "diversity" hiring)? Even if it's a brand new firm? Even if race is not used as a "tiebreaker" but as something more significant? These aren't rhetorical questions, I'd like to know the law and relevant citations.
6.21.2006 4:57pm
Gordo:
Anti-affirmative action zealots take note: employee diversity is good for business. This should have been glaringly obvious when all those amicus briefs for major corporations were filed in the Grutter Michigan cases decided in 2003. I think they were a key reason for O'Connor deciding the way she did.

Of course one can counter-argue that employee homogeneity (no minorities) was good for business in 1940, because a black workforce was bad for business due to race prejudice. And so what is "good for business" isn't necessarily right.

But clearly the days when affirmative action and diversity had to be forced on employers is over and gone with. Employee diversity is an economic good. Which must frost most anti-affirmative action zealots (as I suspect our Professor Bernstein could be classified as) because they tend to be very pro-free markets as well.
6.21.2006 4:59pm
RBG (mail):
Luke's argument might make sense if their policy indeed targets "Chinese" lawyers; I suspect, however, that the Asian-American Law Students Association has relatively few members who are Chinese or who speak it fluently.

If my experience in Asia is a reliable guide, I would suspect that Chinese clients would rather have a Caucasian attorney who was fluent in Chinese than an Asian-American attorney who spoke only English. In fact, they might very well be insulted to learn that an English-only-speaking attorney had been assigned to their matter simply because the firm thought the client would appreciate having somebody who kinda looked like them on the case.

Further, as a Caucasian who spent several years in an Asian country and speaks the language of that nation fluently, I find it rather insulting that another attorney who just happens to be a minority whose ancestors immigrated from that country, but who has never spent time there and does not speak the language, might be deemed on that ancestral basis alone better qualified than I to serve clients from that country. I know, I know, that's crazy--'cause it all comes down to sharing the same skin color, right?
6.21.2006 4:59pm
Bpbatista (mail):
Well, suppose Wal-Mart stated that since virtually all of our managers are white men, we require that virtually all of our lawyers be white men. And then the various law firms hire mostly all white men. Any one have any difficulty imagining a court finding that unlawful?
6.21.2006 5:00pm
Tom in LA (mail):
Do you folks really want to argue that "diversity" doesn't mean "racial diversity"? Please follow the link.

"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."

Can't imagine why anyone might think they mean racial diversity.

Ship Erect, Somehow I think that announcing that you factor nationality, economic status, age, sex, and political views into your hiring decisions might not be a very good strategy either. Seems like most organizations make a big thing about NOT discriminating with regard to those factors.
6.21.2006 5:02pm
Mr_Thorne (mail) (www):
RE: Why is that a reasonable assumption? Especially at international law firms, "diversity" means much more than diversity along racial category lines.

It's a reasonable assumption because that's precisely how law firms measure diversity. They say stuff like, "24% of our first-year associates are minorities and 52% are women." They say, "our goal is to increase our recruitment of African Americans."

They're advertising that they're ignoring Title VII. That's a dumb thing for a law firm to do (IMHO). I don't doubt that — one day — a Barbara Grutter is going to be refused a job at a law firm because she's not a member of some endangered minority.

She can go back to court, and she can win. SCOTUS says that the state has a compelling interest in promoting diversity in higher education. That does not mean that they're going to accept violations of Title VII, no matter how fashionable that may be these days.
6.21.2006 5:02pm
David Sucher (mail) (www):
As a client, if I am being charged $250/hour for the time of a 26 year old associate with no real world experience, all I care about is brains and ability to work hard. All other factors (except basic civility and ability to communicate, which I take for granted) are irrelevant. The attorneys can all be Martians for all I care. But I wouldn't give Martians any preference for the sake of diversity.
6.21.2006 5:04pm
JGR (mail):
Operating on the reasonable assumption that "diversity" means "racial diversity"

?? What about nationality, economic status, age, sex, political views? Talk about racial paranoia!

Ship erect,

You obviously haven't had any contact with American culture for the last 2 decades or you would know that "diversity" is almost always used as a codename for racial and ethnic diversity, although sometimes also including women and gays. In the case of large companies like this, however, an appropriate number of women is generally less of a problem than finding the appropriate numbers of specific racial and ethnic groups.

I think it was one of the Volokh commentators who had a post awhile back recounting how someone had asked them about diversity at their school, and they answered they thought the faculty was very diverse because it had a wide range of age groups, people from different geographic locations and other things I don't remember. The questioner responder, "No, I said DIVERSITY."

The fact that this word is almost always misused is of course something worth pointing out, but doesn't alter its misuse.

If someone wrote "She said she was pro-choice, which probably means she supports legal abortion..." would you have responded:

What about pro-choice in education! What about pro-choice in freedom of speech! Talk about paranoia!"

Again, the discrepancy in meanings is worth pointing out, but that's a different conversation.
6.21.2006 5:07pm
Houston Lawyer:
I strongly suspect that the qualifications of the major firms' "diversity" hires are significantly below those of their white peers. Given the disparity between the relative qualifications among white and minority law students, I don't see how this could be otherwise. Law firms are under intense pressure from their clients to hire based upon race. Major corporations often ask for a race and sex based breakdown of the attorneys in a law firm prior to hiring that firm. Shell, in particular, did this to my last firm.

The reason that they can get away with this is because white guys don't have an army of advocates out there just waiting to file suit based upon a racial discrimination claim against white people. Also, proving you weren't hired because of your race will always be difficult.
6.21.2006 5:11pm
Luke:
RBG - point taken. You are a "diverse" person because of your background, not your race. Although, given that the Chinese culture is obssessed with ancestry, you might lose out in that situation anyways!
6.21.2006 5:23pm
Luke:
@HL: do you mean their qualifications after graduation, or when they enter into law school?
6.21.2006 5:25pm
OrinKerr:
Luke, Houston Lawyer,

Stuart Taylor's latest column is on this topic, and Richard Sanders' latest article. It is here.
6.21.2006 5:30pm
Steve:
The reason that they can get away with this is because white guys don't have an army of advocates out there just waiting to file suit based upon a racial discrimination claim against white people.

Why is it, do you suppose, that the poor white guy can't catch a break? Surely if these claims had merit, there would be lawyers to take them.
6.21.2006 5:32pm
Constantin:
Diversity means something very specific to international firms. Don't kid yourselves.

I worked for an international firm right out of law school. At our orientation, topic number one for discussion was the firm's diversity efforts, defined to bolster numbers of racial minorities, women, gays and lesbians, and the handicapped. Regarding the first category, I asked if our offices in Thailand, for example, followed initiatives to hire white attorneys, who certainly are a racial minority in that country.

I never heard the answer, because I was kicked out of the meeting. But I think I can guess.
6.21.2006 5:35pm
Bruce Wilder (www):
Your worldview is imposing a very strong filter on that word, diversity.

What if a white guy did sue a law firm, which had been emphasizing "diversity" in their hiring? That firm will have hired white men, white women, black and/or latino men, black and/or latino women, maybe even asian men and women, as well, perhaps, as handicapped or gay lawyers or foreign nationals, in the recent past. Given that record of (for lack of a better word) diversity in hiring, most of us, who lack peculiar ideological committments, are not going to see that history as demonstrating a pattern of racial discrimination.

I perfectly understand how, in Bernstein's worldview, such a diverse workforce, arrived at by targeted recruiting practices, constitutes evidence of racial discrimination, since Bernstein regards targeted recruiting itself as constituting illegal racial discrimination. But, most people, sans his worldview, are not going to see targeted recruiting in service of a general diversity policy as constituting an illegal policy of racial discrimination.

The goal and the outcome of a diversity policy are not going to be seen by anyone except a committed ideologue as consistent with a fact pattern expected in a case of racial discrimination.
6.21.2006 5:46pm
Constantin:
Gordo, I'm an anti-affirmative action zealot, and a free market zealot, too. My zealotries are rather easy to reconcile since Title VII is enforced to protect certain groups of people but not others. In this regard, like so many others, the market's not free.

My solution--get rid of Title VII and everybody, racists included, hires whoever they want--is likely to find not much political support. The more practical fix would be apply it to white guys, too.
6.21.2006 5:58pm
Houston Lawyer:
Diversity, as used by law schools and law firms, is merely a code word for racial preferences. It is the successor to the term affirmative action. You are quite free to believe that racial discrimination is OK, so long as the right racial group is being discriminated against. But you should at least be clear that you believe that the group being discriminated in favor of is incapable of making it on their own.
6.21.2006 6:02pm
Hans Bader (mail):
Race-based hiring to promote "diversity" (as opposed to remedying a truly manifest racial imbalance) is forbidden by some federal appeals courts. E.g., Taxman v. Board of Education, 91 F.3d 1547 (3d Cir. 1996); Messer v. Meno, 130 F.3d 130 (3d Cir. 1997). Yet it continues.

Businesses trumpet "diversity" for the same reason they used to give large amounts of money to groups controlled by Jesse Jackson: public relations and appeasement.

Jesse Jackson never polled much above 30% in presidential opinion polls, and is at the left end of the Democratic Party. Businessmen, who are hardly leftwing, gave him money, despite his support for anti-business policies, such as greater regulation, unionism, protectionism, welfare, and increased wage mandates. Obviously, business's donations to Jesse Jackson are not based on agreement with him or his left-wing political agenda.

Why then did businesses give him money? Appeasement, and the desire to cater to someone who could damage their image by branding them racists.

That's the same reason they publicly support affirmative action, while privately lamenting its costs and wasteful inefficiency. Racial discrimination is bad business practice, even when whites are the victims.

Retired business executives gave money to ban affirmative action through Proposition 209 and I-200, while the companies they once worked for issued the obligatory denunciations of those very propositions. The retired business executives could afford to be candid; the businesses they used to run could not, and had to lobby liberal and minority lawmakers on a daily basis, sometimes for corporate welfare.

The belief of Gordo and some liberal judges like Justice John Paul Stevens that businesses must consider racial preferences beneficial to business success because they so claimed in amicus briefs in the Grutter v. Bollinger case is deeply naive.

Stevens has said how influenced he and the justices were in Grutter by the "dark green" amicus briefs supporting affirmative action from respectable institutions and businesses.

But that support was a sham. Businessmen usually don't defend affirmative action in private. But they do so in public in amicus briefs, because they want to cater to the legal community (lawyers strongly favor Democrats in elections that are close among the general public, and support affirmative action much more than the general public) and to judges (the Supreme Court is split on affirmative action, but most state courts are more liberal than the federal courts; and the justices who are pro-affirmative action are more willing to interpret the law "creatively" in ways that could harm businesses in the future than the typically anti-affirmative action conservative justices who rigidly cling to less flexible and manipulable modes of statutory construction, like textualism or originalism).

Justice Stevens once recognized in the League of Women Voters case that private institutions seeking government largess tell the government what they think it wants to hear, not what they truly believe, just as a child doesn't tell its mother the unpleasant truth that she is fat before asking for a cookie.

But years later, he forgot his basic insight in Grutter.

The businesses filing amicus briefs in Grutter in support of racial preferences almost all relied heavily on government contracts, corporate welfare, or trade protection, for their profits, and thus could ill-afford to piss off liberal policymakers who are not too pro-business to begin with.

They may have felt they had little choice to be candid about the costs of affirmative action.

And they were doubtless well aware that lawyers and judges, even nominally Republican judges, are more liberal on social issues than the average voter. (Bill Clinton beat the elder Bush by only about 5 percentage points in 1992, but crushed him among lawyers, according to the Harvard Journal of Law and Public Policy).

Businesses practice affirmative action to appease government officials, ward off "disparate impact" lawsuits, and avoid bad press from left-wing pressure groups.

But deep down they know it is inefficient and wasteful.
6.21.2006 6:15pm
Tom in LA (mail):
Bruce,

Nice to see someone drop the facade. You lack "peculiar ideological committments"? Riiight. Nothing like a good ad hominem argument.
6.21.2006 6:16pm
Constantin:
Bruce, what you describe necessarily entails conscious decisions to favor one person over another, for hiring or admission, based on the color of their skin. Diversity efforts aren't amorphous blobs that spring and survive on their own. They must be fed by active and individual race-based decisions, made by and affecting individual people.

I'm not sure if I agree that most ordinary people see the vagueness you describe as okay, but I'm quite certain they'd view the mechanical realities of diversity programs as racial discrimination. Because they are.

Also, I am curious whether you would find it ever appropriate for such efforts to be employed to the detriment of a black or female or gay student or lawyer. As someone alluded to (sort of) above, what if a white supremecist client demanded it?
6.21.2006 6:17pm
Mark Buehner (mail):

But clearly the days when affirmative action and diversity had to be forced on employers is over and gone with. Employee diversity is an economic good. Which must frost most anti-affirmative action zealots (as I suspect our Professor Bernstein could be classified as) because they tend to be very pro-free markets as well.


Er... if that were the case one would think it would frost the pro-affirmative action zealots most of all. It has basically proved that the market provided a solution working better than all the racial juryrigging of the last 30 years. If the market is supplying the solution what then is the point of affirmative action? Lets not mince words- its to give advantage to one chosen racial group over another. Lumping all Asians together and then claiming they form any kind of homogenious diversity group is obviously stupid but also insulting. Indians and Koreans bring such a similar experience and worldview to the table we can lump them together? Please.
6.21.2006 6:23pm
Greedy Clerk (mail):
lawyers and judges, even nominally Republican judges, are more liberal on social issues than the average voter

That's because more educated people are more liberal on social issues. The more educated you are, the less likely you are to believe that blacks are inferior, homos are evil, and the state should have partial title to 51 percent of the population's most private body parts.

Bill Clinton beat the elder Bush by only about 5 percentage points in 1992, but crushed him among lawyers, according to the Harvard Journal of Law and Public Policy

So. Bush beat Clinton with white males, despite losing the election by five points.
6.21.2006 6:26pm
Greedy Clerk (mail):
All the poor white people who can't get jobs --- obviously it's a result of discrimination and not their own lack of credentials. I am white, and I was never NOT given an offer with the many law firms I interviewed with; I guess I am one of the lucky ones. Sort of like a freed slave in the first half of the 19th century. . . .
6.21.2006 6:31pm
Tom in LA (mail):
That's because more educated people are more liberal on social issues

He said lawyers and judges, not educated people.

I am white, and I was never NOT given an offer with the many law firms I interviewed with

Must have been discrimination.
6.21.2006 6:43pm
davidbernstein (mail):
Wilder, this has nothing to do with ideological commitments. Title VII, on its face, bans discrimination based on race, whether in favor or against any particular group. It would certainly be possible for courts to nevertheless interpret Title VII as allowing preferences for minority groups but not for whites, but do you have any actual legal citations supporting this perspective?
6.21.2006 6:50pm
Woodland Critter (mail):
If a number of institutions adopted ABA 211 which was subsequently found to be in violation of various state laws, would a student denied admission have a RICO case against the ABA and the schools?
6.21.2006 7:25pm
gvibes (mail):
GC - The more educated you are, the less likely you are to believe that blacks are inferior, homos are evil, and the state should have partial title to 51 percent of the population's most private body parts.
If blacks aren't inferior, why do they need extra help getting into the best schools and getting the best jobs?
6.21.2006 7:27pm
Cornellian (mail):
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.

This could mean nothing more than that they try really hard to attract minority applicants by attending specialized job fairs, historically black law schools etc., or that they're trying pre-emptively to assure potential minority applicants that they're not a firm full of white guys where they'll feel like an outsider, or any number of other things, all of which are light years away from being a Title VII claim. I agree with the earlier poster - this is standard big firm boilerplate, nothing to see here.
6.21.2006 7:35pm
M. Lederman (mail):
David: Here are some "actual legal citations":

443 U.S. 193 (1979)

480 U.S. 616 (1987) (including the JPS concurrence and SOC dissent)

http://www.usdoj.gov/osg/briefs/1996/w96679aw.txt

Cindy Estlund, "Putting Grutter to Work: Diversity, Integration, and Affirmative Action in the Workplace," 14 Berkeley Journal of Employment &Labor Law 1 (2005)
6.21.2006 7:40pm
Gordo:
Hans Bader: Your arguments have some plausibility - however, I would think that a corporation hiding its distaste for affirmative action would merely remain silent on a major Supreme Court decision on the topic, not actively file an amicus brief.

It is also interesting that the military promotes "diversity." As we have been made painfully aware with the don't ask don't tell fiasco, the military would have to be dragged kicking and screaming if they believed diversity was bad for military effectiveness instead of a benefit.

Mark Buehner - I have no problem with the market providing a solution to affirmative action issues, even if those to the left of me do. However, those to the right of me want to outlaw the market preference for diversity - as is evidenced by Professor Bernstein's start to this thread. Perhaps they don't see the ideological incompatibility of being pro free market and wanting to ban free market hiring practices they don't like. Or perhaps they just don't care.
6.21.2006 7:43pm
Gordo:
While I can thinking of nothing more boring than to wade through the articles in this issue, I would suggest that there is quite a bit of scholarly research documenting the economic benefits to a company or business of a diverse workforce.

http://gom.sagepub.com/cgi/content/abstract/28/1/4
6.21.2006 7:47pm
Ilya Somin:
There is no BFOQ defense for race under Title VII, though such a defense does exist in the case of gender. However, the 1979 Weber decision held that affirmative action is permissible under Title VII in a case where there has been a record of past discrimination. I am not sure that federal courts have ever held that Title VII permits the use of racial preferences purely to promote "diversity."
6.21.2006 7:52pm
Herbert:
Why are you amazed, Mr. Bernstein? The Constitution is a "living document". See, e.g., the Commerce Clause and how it has been stretched.

And who will bring suit? We all know that tens of thousands of employers are violating the immigration laws every single day without a shred of justification, but our government and lawyer classes are completely indifferent.

So who will fight for white gentile law students?

First, there is no white solidarity (well, at least no white gentile solidarity) in "major legal institutions". White gentiles at major law firms are notoriously cutthroat. Their only loyalty is to themselves as individuals. Eat what you kill. They are only made partner if their departure (and theft of clients) would threaten the firm's bottom line.

Second, blacks and hispanics are surely not going to worry about discrimination against white people.

Third, there is no threat to white Jews, who will always be at the top of the white pool and are therefore substantially immune to the effects (at least for now) of affirmative action, so they are not particularly interested.

Fourth, the general feeling is that there is nothing to be gained by advancing poor white folks' causes. As a major mostly white law firm, how can you defend poor white folks against discrimination and still wrap yourself in the mantle of Diversity? It would be a huge threat to the very WalMart diversity work you are trying to lure. What would WalMart think? Better to work pro bono for lesbian separatists or illegal aliens.

So who cares to bring suit?
6.21.2006 7:55pm
M. Lederman (mail):
Ilya: Weber and Johnson do not require that an employer have a "record of past discrimination" -- or any evidence of such employer discrimination, for that matter. Indeed, that is why O'Connor (concurring) and Scalia and White (dissenting) did not approve of the majority rationale in Johnson.
6.21.2006 8:03pm
davidbernstein (mail):
Whoops, I wrote a long response to Marty and then deleted it. The essence: I'm not sure that Johnson is good law after several later USSC opinions suggesting that preferences can't be used to remedy general societal discrimination, I'm not sure Johnson and Weber can be separated from their facts of arising in the context of fields in which blacks and women respectively were still suffering tremendous formal and informal barriers (is that true today for minorities at large firms like ML?), I wonder whether law firms' "diversity" rationale for preferences has anything to do with Johnson, which focused on "manifest imbalance", not satisfying client's needs, and I also wonder whether Johnson would allow any sort of preference short of quotas, even though the Court strongly emphasized the "moderate" nature of the preference in that case. Or, even shorter, in essence, if you were representing a company that was drafted a "diversity" policy, would you advise it to announce a policy like ML's? My tentative view is that it would be recklessly inviting a lawsuit on unsettled matters at the very least.

[As for Herbert, believe it or not, not every Jewish law student, to say the least, graduates magna from Harvard!]
6.21.2006 8:18pm
M. Lederman (mail):
David: The cases you're thinking of involved the Equal Protection Clause -- pre-Grutter. The standards for private-party affirmative action under title VII were entirely different: That's the whole point of Weber and Johnson, which have never been called into question by any Supreme Court case (or even by dicta), and which have in effect been ratified by Congress in its reenactments of title VII.

In any event, to the extent that affirmative action permissible under the EPC should automatically be acceptable in the private sector under title VII, as well, then Grutter-like diversity is certainly a permissible basis for such affirmative action.

You suggest that if a company lawyer drafted a "diversity" policy like Morgan Lewis's, "it would be recklessly inviting a lawsuit on unsettled matters at the very least." But thousands of employment lawyers would beg to differ. Post-Johnson/Weber, they have drafted such policies for virtually every major employer in America, and as far as I know there have been no such lawsuits in almost 20 years.
6.21.2006 8:28pm
Greedy Clerk (mail):
If blacks aren't inferior, why do they need extra help getting into the best schools and getting the best jobs?

Unfortunately, this is probably the majority view among those who virulently oppose affirmative action (and for that matter, a large minority view of blogs like this and Instapundit). It's rather sad — but what is sadder is that I am the first to point it out and condemn it. While the moderators have time to ban others and argue certain semantics, this comment is no problem.
6.21.2006 8:30pm
davidbernstein (mail):
Marty, are you suggesting that a 5-4 (effectively on the issues you raise) ruling like Johnson, with Brennan, Marshall, and Blackmun in the majority, called into question by the E.P. cases, and by cases like Taxman, is clearly the law? And that it can even be extended beyond its narrow confines? And that Grutter, which O'Connor explicitly based on the academic freedomn and judgment of educational institutions, is readily transferable to the employment context (didn't the Court in the Price Waterhouse case reject the idea that firms are entitled to something akin to associational freedom)? I think these are all dubious assertions. (BTW, I think E.P. standards and Title VII standards SHOULD be different, but has any court so held?)

I know that employers routinely say that they value diversity in hiring, but that's pretty vague. Is it really that employers routinely say that they give "diversity" the same weight in making employment decisions as, e.g., past experience, ability to staff projects efficiently, etc., making it clear that they don't simply value diversity, but give strong preferences for those who would add diversity? I'm willing to be educated on this, but it seems unlikely to me.
6.21.2006 8:36pm
David M. Nieporent (www):
Prof. Lederman,

It seems to me that Grutter was explicitly confined to the alleged special characteristics of the academic context, and cannot reasonably be read to apply to employment settings like MLB's.
6.21.2006 8:42pm
Christopher Cooke (mail):

If blacks aren't inferior, why do they need extra help getting into the best schools and getting the best jobs?

Answer: because of discriminatory attitudes that still persist among non-blacks, as your question demonstrates. Because blacks were only, on paper, provided with full legal equality with the passage of the Civil Rights Act of 1964, and, in practice, still suffer from the lingering effects of these Jim Crow laws and the attitudes behind them.
6.21.2006 8:51pm
davidbernstein (mail):
P.S. Marty, doesn't the ML language quoted above make it clear that the law firm's preferences are not (directly) based on the considerations emphasized in Johnson, but on firm firm perfomance and client preference?: "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."
6.21.2006 9:18pm
Constantin:
Christopher--

Affirmative action to get into college, affirmative action to get into law school, affirmative action to get on law review, affirmative action in law firm hiring, affirmative action in law firm promotion.

If you're claiming that a guy who has graduated from, say, Harvard and Harvard Law still needs AA to land a job, aren't you guys the ones at least implicitly saying there's something inherently wrong with him?
6.21.2006 9:46pm
fahagen:
At my last firm, a Fortune 500 client required demonstrated racial and gender diversity at our firm, and that associates that working on their matters be either minorities or women. I was required to work on a project for that client off the books because I have the prohibited sexual organs and skin color.

This is real.
6.21.2006 10:16pm
Truth Seeker:
The Florida Bar News recently had an article saying that clients want to see diverse lawyers working on their cases (being diverse in race, gender and sexual orientation) and I just wondred how they knew a lawyer had diverse sexual orientation. Do they need to sashay into the room, drop their hand at the wrist and say something with a lisp, so the client knows for sure?
6.21.2006 11:04pm
Ilya Somin:
In reply to points made by David and Marty Lederman:

The 1979 Weber, 443 U.S. 193, did indeed uphold "voluntary" affirmative action against a Title VII challenge. However, it did not say that employers can use affirmative action to promte whatever purposes they want, much less to promote "diversity." Instead the Court stated that:


We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of the Fourteenth Amendment. Further, since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with what Title VII requires or with what a court might order to remedy a past proved violation of the Act. The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan. Weber, 443 U.S. at 200.


It pointed out that the purpose of the plan was to eliminate "traditional patterns of segregation" (Id. at 201), in an industry where " blacks had long been excluded from craft unions" (id. at 198) and therefore from employment opportunities both in the industry and in the particular firm. This is a far cry from allowing affirmative action to promote "diversity" irrespective of past discrimination by the firm or by the industry.

In my view, the law should allow private employers to adopt affirmative action plans if they want to, even if the goal is just "diversity" and even if there is no pattern of past discrimination. But what the law in my view should be is not the same thing as what it is.
6.21.2006 11:11pm
Christopher Cooke (mail):
Constantin:

I am not saying that all types of affirmative action in all areas are necessary; I just think some types are. Personally, I would allow affirmative action on a case by case circumstance, based upon a particular applicant's background and life experience, and the institution's history, and would not restrict it solely to an applicant's racial or ethnic characteristics.

My point in responding to the poster's question about "racial inferiority" was merely to point out what, to me, seems obvious: blacks in the USA have been and still are subject to unequal treatment, and affirmative action is designed to address that inequality. It seems ridiculous to expect that Congress' passing of a series of laws 40 years ago changed all of the racist attitudes that kept blacks downtrodden.

I certainly agree that one can point out areas where affirmative action may not work, may be applied in an unduly unfair manner, and may produce unintended and bad results (e.g., the study by Professor Sander described in Stuart Taylor's article). Those, to me, are reasons to change it, not to abolish it and pretend there is or hasn't been any recent racism towards black people.

My own grossly oversimplified observations about the opponents of affirmative action suggest to me that they are largely:

1. US born white guys who, at some point in their life, didn't get into a school they wanted to attend, or didn't get job or promotion they wanted, and who blame it on affirmative action;

2. a few very conservative ethnic minorities who think it is demeaning to them and to their accomplishments, because they think affirmative action stigmatizes all in their ethnic or racial group, because everyone assumes that a minority only got a top job because of affirmative action (Clarence Thomas is a good example)

3. recent white immigrants who are successfully economically, politically, or academically, and who reason, "I didn't need it so why does anyone else?" (Scalia is my example for this category) and

4. racist whites, who oppose it for the same reasons they opposed integrated schools and the Civil Rights Act of 1964 (Jesse Helms, Strom Thurmond, and their core supporters)

5. white politicians, who may not be rascist but who pander to those in groups 1, 3, and 4 (GW Bush).


As for my own experiences with affirmative action, I doubt whether I ever directly benefitted from it, as I am a white heterosexual male, of non-immigrant background. I did have occasion to see it implemented in hiring, as I used to work at a very large corporate law firm (bigger than ML) that prided itself on its diversity programs. In practice, the diversity program meant that we did a lot of "outreach"--i.e., we recruited at a few law schools that were not in the top 10 or top 20 (such as a historically black school like Howard); and we had big shot or minority partners meet with minority student associations at the Top Tier schools and talk up our firm to them, and actively pursue the candidates we liked alot. But, at the non-Top Tier schools, we typically only hired the top students. My experience was that, so long as we hired students who excelled in law school, they excelled at our firm, regardless of where they went to school. I think the problems occured more when we hired the bottom-ranked students, since often their writing skills were substandard (and that is mainly what we had young associates do in the litigation department---write legal briefs and memos). They would get discouraged, and leave after two years (I think the Taylor article is true in describing this problem). Who knows, maybe the program did do them a disservice.
6.21.2006 11:46pm
Daryl Herbert (www):
If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be?

Belittle the plaintiff, play to black entitlement and white guilt in the jury.
6.21.2006 11:56pm
Christopher Cooke (mail):

If a disgruntled rejected white applicant ever sued Morgan Lewis for discrimination, what would the defense be?


The defense would be that the firm didn't discriminate against the applicant for any impermissible reason, he just wasn't qualified.

I for one don't see any legal problem, as the law now stands, with Morgan Lewis' descriptions of its diversity program nor with the ABA's Standard 211. ML's program described on its website is not limited to promoting diversity by considering only racial or ethnic characteristics, and explicitly mentions economic and other background characteristics, which makes it NOT reasonable to assume that diversity equals only race.

I note thatt Professor Bernstein's responses to Marty Lederman's legal arguments as to why voluntary affirmative action programs by private employers are legal under Title VII is essentially, "Yeah, but your Supreme Court cases (Johnson, and Weber), which have never been overruled, probably will be." Until they are, they remain good law, regardless of one's views about the wisdom of those decisions, or the anti-affirmative action proclivities of the most recently appointed members of the Supreme Court. As for the ABA, I think the organization's statement about not letting a law school off the hook because the law school thinks that promoting diversity violates state or federal law is simply the ABA's way of preventing schools from doing something like hiring Professor Bernstein to tell them how they can't legally enact affirmative action programs, as an excuse for not having affirmative action programs. I do agree that the ABA shouldn't use its hammer of non-accreditation against such schools, but don't find that its behavior promotes "illegal" conduct, because I think it plain, after Grutter, that some type of affirmative action can be legally implemented at public schools and Grutter doesn't apply to private schools.
6.22.2006 12:23am
blackdoggerel (mail):
Anti-affirmative action zealots take note: employee diversity is good for business. This should have been glaringly obvious when all those amicus briefs for major corporations were filed in the Grutter Michigan cases decided in 2003. I think they were a key reason for O'Connor deciding the way she did. ...

[T]here is quite a bit of scholarly research documenting the economic benefits to a company or business of a diverse workforce.

If these statements summarize your general view, I would highly recommend reading Prof. David Wilkins's article, From "Separate is Inherently Unequal" to "Diversity is Good for Business": The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar, 117 Harv. L. rev. 1548 (2004). Wilkins shows how the bromide of "diversity is good for business" may not at all be translatable to the law firm context, and why relying on such an all-purpose platitude is more than likely hurting young lawyers who are members of traditionally disadvantaged groups.

Bear in mind that Wilkins is a staunch proponent of affirmative action. But the article really focuses on the questions we should be asking on these issues, not the slogans we think apply in all circumstances. Fascinating article, and required reading for anyone interested in this debate, regardless of your initial position.
6.22.2006 1:21am
gvibes (mail):
Christopher Cooke wrote: Answer: because of discriminatory attitudes that still persist among non-blacks, as your question demonstrates. Because blacks were only, on paper, provided with full legal equality with the passage of the Civil Rights Act of 1964, and, in practice, still suffer from the lingering effects of these Jim Crow laws and the attitudes behind them.
That's certainly a legitimate policy argument, but is it a defense to a charge of discrimination under Title VII? Is it an interest sufficiently compelling to overcome strict scrutiny? I'm no expert, but I'm pretty sure the answer to the second question is "no." Mr. Bernstein was asking for an answer to the first question, and after briefly looking at the cases cited by M. Lederman, it looks like there is a good chance that a private employer could prevail, if the plan were temporary.
6.22.2006 3:06am
David M. Nieporent (www):
Wilkins shows how the bromide of "diversity is good for business" may not at all be translatable to the law firm context, and why relying on such an all-purpose platitude is more than likely hurting young lawyers who are members of traditionally disadvantaged groups.
It also seems rather perilous strategically. After all, if the justification for so-called affirmative action is that a study says that diversity is good for business, then what happens when a new study says that diversity is bad for business? Would that justify an all-white business/law firm?

Somehow I suspect all proponents of affirmative action would say no. But either empirical arguments matter or they don't.
6.22.2006 3:08am
M. Lederman (mail):
David & Ilya:

Very short version:

1. Yes, Johnson is "clearly the law." Would the current Court come out the same way? Perhaps not. But that's true of much established precedent, e.g., Roe, McConnell v. FEC, Grutter itself, etc. That doesn't mean private actors shouldn't rely on those precedents. And employers have been relying on Johnson for close to 20 years, with absolutely no sign that it is soon to be a dead letter. In addition, there's a strong argument that Congress has ratified Weber and Johnson in its reenactments of title VII. Therefore, I would not expect Johnson to be overruled anytime soon.

2. My point is not that "diversity-based" affirmative action plans are (necessarily) directly endorsed by Weber and Johnson. But what those cases do demonstrate is that preferences are not per se impermissible, i.e., that not all preferences are "discrimination" under title VII. Moreover, those decisions do not suggest that they announce the exclusive justifications for preferences. As Justice Stevens notes in Johnson, "the [majority] opinion does not establish the permissible outer limits of voluntary programs undertaken by employers to benefit disadvantaged groups. . . . Indeed, in some instances the employer may find it more helpful to focus on the future. Instead of retroactively scrutinizing his own or society's possible exclusions of minorities in the past to determine the outer limits of a valid affirmative-action program - or indeed, any particular affirmative-action decision - in many cases the employer will find it more appropriate to consider other legitimate reasons to give preferences to members of underrepresented groups. Statutes enacted for the benefit of minority groups should not block these forward-looking considerations."

2. Even in Johnson itself, no finding of discrimination was necessary. It was sufficient that the employer was trying to address "the existence of a 'manifest imbalance' that reflect[s] underrepresentation of [the group] in 'traditionally segregated job categories.'" It is very possible that Morgan, Lewis, and many other large firms and employers, could easily satisfy this Johnson standard itself with respect to minority and female attorneys.

3. But what if Morgan, Lewis did not defend the plan on a "manifest imbalance" theory, but instead invoked only a diversity-like rationale, akin to that in Grutter? In that case, Johnson wouldn't resolve the question, but it wouldn't foreclose the affirmative action, either. And for the reasons we explained in that DOJ brief, diversity-based plans have been upheld in various settings.

4. Johnson and Weber also suggest, correctly in my view, that if an affirmative action plan satisfies equal protection standards, it almost certainly would also satisfy title VII standards, since (as Johnson and Weber themselves demonstrate) the latter is less restrictive when it comes to affirmative action programs. And if a Morgan, Lewis plan would satisfy Grutter in the case of a public employer, a fortiori it would satisfy title VII for a private employer.

Cindy Estlund's article explains all this in further, helpful detail.
6.22.2006 4:34am
Kevin P. (mail):
For those who think this is boilerplate, check out Walmart's bragging:

http://www.walmartfacts.com/associates/diversity.aspx#a1542


Additionally, we asked each firm to submit a slate of candidates to be considered for appointment as the new relationship attorney at the firm. The relationship attorney is the person primarily responsible for overseeing Wal-Mart's legal matters within the firm. The slate had to include at least one female and one attorney of color.

As of September's end, our initiative had resulted in the changing of 40 relationship attorneys at our top 100 law firms, representing a shift of $60 million worth of legal work to be managed by women or minority attorneys. Additionally, we have ended our relationship with two law firms for failing to meet our diversity expectations.


Boilerplate, indeed.
6.22.2006 9:18am
davidbernstein (mail):
Marty,

I'm still stuck on the fact that in Johnson you had two candidates (male and female) who were for all practical purposes equal, both were deemed well-qualified under the relevant hiring criteria, and that the court emphasized the "moderate" nature of the preferences. Let's say a law firm only hires white males from the top 10% of their class at select schools, but will hire members of a particular minority group who are in the bottom half of their class. By the firm's own standard hiring criteria, the latter candidates are not similarly (or well) qualified, no? And the preference is no longer at all similar to the facts of Johnson? Would Johnson have come out the same way if women in that case had been given a preference equivalent to the preference given for those with years of relevant job experience? Johnson does suggest that preferences aren't always illegal under Title VII, but even assuming it's still good law, I think its holding would have to be signfiicantly expanded to do all the work you want it to do.

And while I very much respect Cindy's work, given Price Waterhouse, I don't see how an employer can rely on Grutter and its academic freedom/autonomy rationale.
6.22.2006 9:19am
davidbernstein (mail):
Marty (or anyone else) care to argue that WalMart's staffing requirements are legal?
6.22.2006 9:21am
davidbernstein (mail):
PPS In contrast to Marty's view that Weber and Johnson provide a clear safe harbor for preference policies at private employers, even in the absence of past discrimination by that employer, Estlund writes, "In the private sector as in the public sector, there has been no reliable defense of affirmative action for employers who are unwilling or unable to suggest their own complicity in past segregation and current inequities."
6.22.2006 9:31am
A.C.:
Some posters here have attributed some fairly specific motives to people who oppose affirmative action as currently practiced in many institutions. These motives certainly exist -- Clarence Thomas has been very open about expressing his opinions, for example. But I think the overwhelming majority of people who have qualms about the "diversity" rationale for affirmative action are ordinary middle and lower-middle class people who don't have their own dog in the fight but who share the following characteristics:

- They support programs that benefit people poorer than they are;
- They don't support programs that benefit people richer than they are at their expense; and
- They think that rights, including the right to economic mobility, attach to individuals and not groups.

The logical outcome of such opinions is to favor helping out people who are disadvantaged for some reason, but expecting the upper middle class and wealthy (regardless of race) to compete on an even playing field.

The people who fought the Michigan affirmative action case understood this, I think, and I recall that one of their plaintiffs was a white single mother from a working class background? In what alternative universe is it reasonable to ask her to compete on credentials with the child of two black orthopedic surgeons?

You can say that, in the real world, the doctors' kid is more likely to be white or Asian and the single mother is more likely to be black. Fair enough. But when the opposite occurs, why should racial categories trump economic and social background when determining how much help someone needs to compete on an equitable basis?

The only way to that rather odd result is to dispense with any concern for the life chances of individuals and to look only at the aggregate outcome for groups. Diversity arguments play right into that, and some of us don't like the results. One reason for our discontent is that group diversity may get you a multicolored upper class, but it doesn't really help those members of society who need help the most. Another reason is that it lets privileged liberals pretend they are progressive without actually sharing their advantages with the unwashed. (That child of the orthopedic surgeons isn't a class threat, whatever he looks like.)

As for other concerns, of course the lawyer you send to China should speak Chinese ... unless you happen to know that the client went to MIT and wants to show off his English. If you don't know that, it's asinine to make assumptions. But the person you send should really speak Chinese, at an educated level, which may or may not be true of the person who picks it up at home in an immigrant family. Ancestry isn't all that good a predictor of language and cultural skills, and race is even less so. Far better to hire for those skills directly and not rely on race as a proxy.
6.22.2006 9:56am
Hans Bader (mail):
It's true that the Supreme Court allows more affirmative action for private employers under Title VII than public employers enjoy under the Equal Protection Clause.

But that still does not mean that "diversity" policies in employment are legal. Actually, they're illegal in certain parts of the country.

The Fifth Circuit's ruling in Messer v. Meno (1997) and the Third Circuit's ruling in Taxman v. Bd. of Educ. (1996) hold to the contrary, rejecting diversity as a justification for using race outside the context of student admissions under Title VII.

The idea that there have been no court challenges in 20 years to "diversity" policies, as M. Lederman suggests, is unfounded. There have been such challenges.

In the Lutheran Church v. FCC case, the D.C. Circuit, echoing the Third and Fifth Circuits, also strongly suggested that diversity is not a justification for using race in the employment setting, even against an equal-protection challenge.

Under Supreme Court precedent, a private employer (unlike a public employer) can use race to remedy a "manifest imbalance" in the racial or sexual composition of its workforce, but the imbalance must be substantial, as the Eighth Circuit ruled in the Maitland case in stripping public officials of qualified immunity for using affirmative action to remedy small disparities.

More importantly, any racial "imbalance" needed to support affirmative action is based on a comparison to the qualified labor pool (the pool of people who are deemed qualified for the position), not the general population -- and the qualified labor pool is typically overwhelmingly white, obviating any justification for affirmative action.

There is one area where the Equal Protection Clause seems to permit more, rather than less, affirmative action than Title VII: college admissions.

Ironically enough, if Title VII's "manifest imbalance" standard had been applied to the University of Michigan Law School's admissions program, it would have been struck down, since the qualified applicant pool was much more heavily white than the applicants actually admitted, and quite similar to the applicants who would have been admitted under a race-neutral admissions system.

While using a race-neutral admissions system focusing heavily on grades and test scores would have resulted in a lower percentage of admitted black and Hispanic applicants than their percentage in the general U.S. population, some of those applicants had such low grades and test scores that they would not be deemed part of the qualified pool, and whether there is a "manifest imbalance" is based on a comparison to the qualified pool, not the general population.

(As even some advocates of affirmative action, like certain staffers at the Law School Admissions Council concede, standardized tests like the LSAT do not discriminate against minority applicants; indeed, studies show that a black student with the same LSAT score and undergraduate grades as a white student typically performs slightly worse in law school than the white student, suggesting that test scores and grades actually overpredict minority performance in law school. Thus, standardized test scores and grades should not be ignored in assessing whether a given minority applicant is part of the qualified applicant pool, since they do not operate to weed out minority applicants who are similarly qualified to non-minority applicants).
6.22.2006 11:39am
ronbo (mail):
As a marketing and branding strategist who, in a former life, practiced corporate law at a global law firm, I would like to offer my own perspective.

I have consulted on a wide range of so-called "corporate social responsibility" initiatives. Social responsibility includes such issues as diversity, environmental awareness, voter registration, literacy, etc. Companies routinely conclude that social responsibility is a low cost, low risk strategy for improving their reputation among opinion leaders and even the public at large.

So, if corporate social responsibility has become apple pie and motherhood for public companies, law firms have every reason to align themselves with their clients on these issues. We can roll our eyes at the cynicism and debate the legal implications but in the final analysis clients want and expect to see the kind of deference to these issues that one finds in the marketing materials of Morgan Lewis and every other major law firm.
6.22.2006 1:08pm
Just:
DB opened comments?!?

So, any follow up on this?
http://www.philly.com/mld/inquirer/news/nation/14872538.htm
6.22.2006 4:51pm
JosephSlater (mail):
As to what the law currently is, we have two lines of cases: the private sector, Title VII line (Johnson and Weber), and the Constitutional/Equal Protection line that's taken a lot of circuitous twists and is even harder to read in this context in that some of the more recent cases aren't actually *employment* cases (Adarand and the U-Mich. admissions cases).

It's correct to say that the Title VII line of cases generally have made it easier than the Con las cases to put into place affirmative action plans, as long as there was a manifest imbalance in that line of work in the area and the plan doesn't adversely impact the majority/traditionally favored group too much.

It's also true that the Title VII cases haven't used "diversity" as a sufficient justification. Do the U-Mich cases change that? Not clear as of yet. Is the diversity rationale just for the public sector? Just for educational institutions? Institutions of higher education? Just for students and not, say, for teachers or other employees? Stay tuned, although Alito replacing O'Connor would seem to make the court more hostile to affirmative action.

Finally, I'm not sure why some comments on this thread claim it's so hard for white guys to sue. Filing with the EEOC is essentially free, and there are certainly "public interest" organizations that will help fund suits challenging affirmative action programs.
6.22.2006 5:08pm