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When Law Students Set the Curve:
After reading this New York Times story about a Stanford Law School student group that is rating law firms on lawyer diversity, I visited the website and was immediately struck by something: When grading the law firms, the students used a flat C curve. Ouch!
tvk:
Indeed, it gets more extreme because they average the grades between partners and associates, resulting in a very tight bell curve.

Incidentally, might this project not backfire? An "F" for diversity might plausibly be interepreted as an "A" for discrimination. But if clients actually like to discriminate--of the rational statistical kind--isn't this data collection providing a map for that?

To say it another way, if I started to rank of "most WASPy lily-white firms" and gave an "A" to the one with the fewest minority partners and associates, the political left would howl. But this survey gives exactly the same information. That they attach a disparaging label does not mean the information cannot be misused.
11.1.2007 1:17am
Brian G (mail) (www):
Oh please. My first year of law school, I heard many of my classmates run that "I want to work at a diverse firm" nonsense. After law school, the same white liberals wound up at the usual suspects, law firms full of other white liberals with a minority sprinkled in here and there.
11.1.2007 1:35am
Cornellian (mail):
Incidentally, might this project not backfire? An "F" for diversity might plausibly be interepreted as an "A" for discrimination. But if clients actually like to discriminate--of the rational statistical kind--isn't this data collection providing a map for that?

Clients sophisticated enough to be able to afford to retain major law firms can find their way to the law firms they want without the benefit of diversity statistics.

Anyway, I assume the project is for the benefit of students, not law firm clients.
11.1.2007 2:39am
Cornellian (mail):
Oh please. My first year of law school, I heard many of my classmates run that "I want to work at a diverse firm" nonsense. After law school, the same white liberals wound up at the usual suspects, law firms full of other white liberals with a minority sprinkled in here and there.

Only liberals want to work at diverse law firms?
11.1.2007 2:40am
jim:
Is anyone else troubled by the idea that these rankings give an incentive for firms to collect data about which of their employees is gay? Shouldn't people be given the dignity to decide the place and prominence that their sexuality should have in their lives? It's one thing if someone feels a strong identification with their sexuality and wants to publicly identify that way, but I'd hate to think that people would feel compelled to broadcast such a personal aspect of themselves so their firm could score a few points.

At the very least I have to wonder how a firm would collect that data without being rude or intrusive.
11.1.2007 2:43am
UW2L:
What I'd like to see is some substantiation of the claims that firms make about clients when discussing their diversity hiring and retention efforts. I've had several firms tell me that clients want to see diversity in the firms they hire. Is this backed up anywhere? Which clients are pushing for law firm diversity ("minority-owned businesses" v. Fortune 500), and in what context (day-to-day stuff v. bet-the-company litigation)? How often will diversity be the deciding factor in choosing a firm to represent your business, anyway?

I'm not really sure why firms trot out this "the clients want it" line, overall. As far as I can tell, a firm's diversity is going to matter much more to the person who has to get up and go to work there every day than to the company hiring the firm to represent its business interests. Still, I'm curious whether there's anything beyond anecdotal evidence to clients' alleged concern for firm diversity.
11.1.2007 3:23am
Armen (mail) (www):
UW2L, the reason firms trot it out is because now the lack of diversity is potentially affecting their bottom lines. I can't answer the rest of your questions without disclosing things I'm not supposed to disclose. But see my first sentence.
11.1.2007 4:26am
merevaudevillian:
This is, of course, just one reason these "rankings" are absurd. If, for instance, in the future, a firm has "only," say, 50% minority, 70% women, and 25% homosexual attorneys, but, for some strange reason, actually trails 80% of all other firms, they'd receive an "F." One would think that, at some point, reaching a "critical mass" (to borrow affirmative action language) would offer someone a "passing grade." Or one would think that a bell curve might be appropriate if the "average" firm is simply "average." Instead, a couple of student who certainly are not knowledgeable in statistics, much less any mathematical theory, have picked among the silliest method to "present" their "data." And using 20% F's gets a lot more press than a fair, a legitimate, or an accurate method.
11.1.2007 8:32am
markm (mail):
If a firm hires only disabled black females, does it get an A+ for diversity or an F?
11.1.2007 9:12am
arthck (mail):
Yes, firms have been asking lawyers to self-identify, and it can get creepy and offensive. Some of the prized demographics openly object to the process. It's hard to say exactly how many like the process, hate it, or have mixed feelings. But I found it morally dubious.

Who counts as a "person of color"? As an URM? When we use URM status as a tie-breaker in hiring decisions, what groups get that break? Can we ask students about their demographic groups so that we can be conscious about that? Wouldn't that be blatantly breaking the law, at least in California?

If someone doesn't self-identify but we feel we know that person's demographics, may we use that person in our data if it helps for PR purposes? Must we use it if the data would hurt?
11.1.2007 9:34am
anti-diversity (mail):
Suppose a law firm is made up of entirely Chinese lawyers? Is it diverse?
There are more than 1 billion people in China. There is tremendous diversity within the country. So a group of Chinese lawyers with various backgrounds can be quite diverse.
How about an all-Asian firm? If they have one lawyer from mainland China, one from Taiwan, one from Japan, one from Korea, one from Malaysia, etc., is that diverse? Or does there need to be an African-American, or in this case even a white American, to "achieve diversity"?
Why is it that a group of white lawyers are automatically considered to be lacking in diversity? I find this frustratingly absurd. What about their backgrounds, their experiences, their hardships overcome, their ideologies, their dispositions?
Diversity, of course, means throw in a minority. Somehow that makes it "more diverse," which for some reason is better than "less diverse." But what difference does it really make?
If a law firm has 10% Hispanic lawyers, does that make it diverse? What does "Hispanic" mean? Mexican, Hondruan, Guatemalan, Puerto Rican, Nicaraguan, Peruvian? Is Brazilian not included because they Spanish is not their main language?
I apologize for the ramble, but I just want to use this as my soap-box and say, "I reject the modern concept of diversity." That doesn't mean I'm for "uniformity," it means that there's plenty of diversity already without trying to "achieve" anything.
I say this as a white straight male. Please forgive me for just not getting it, and for preferring to maintain the status quo.
11.1.2007 10:07am
DDG:

What I'd like to see is some substantiation of the claims that firms make about clients when discussing their diversity hiring and retention efforts. I've had several firms tell me that clients want to see diversity in the firms they hire. Is this backed up anywhere? Which clients are pushing for law firm diversity ("minority-owned businesses" v. Fortune 500), and in what context (day-to-day stuff v. bet-the-company litigation)?


Yes, it's quite real. Fortune 500 Companies. Not so much in hires as having a some non-white males staffing individual case staffing. It comes close to, or is, discrimination.
11.1.2007 10:24am
skyywise (mail):
If law students are willing to grade on a flat curve, why aren't they as willing to be graded on a flat curve? Down with grade inflation!
11.1.2007 10:27am
Jon J. (mail):
Why presume the rankings won't be allowed to evolve to a more flexible stance as the situation develops? Having just completed my 2L job search, it was quite evident to me that some firms had a more diverse workforce than others. Moreover, much of this information is asked for on NALP forms, but without the teeth of putting it all in one place, which may not provide a full incentive for law firms to disclose it. There are other valid issues already acknowledged, although I don't know I personally think they may trump the beneficial aspects of publishing the information.

Otherwise, if we want to complain about an "unfair" grading standard (and I use quotation marks because the standard is disclosed and therefore available to readers so they can interpret the results appropriately), then perhaps we would be better served examining the statistics ourselves and publishing a competing report.
11.1.2007 10:43am
Elliot (mail):
What I find disturbing in the article is not the project, but rather this quote "The students have ambitious plans, including asking elite schools to restrict recruiting by firms at the bottom of their rankings."

If some students want to make decisions for themselves on the basis of diversity, well, that is their call, just like if they were to use the quality of the office artwork to make their choice. However when they begin seeking restricting the choices of others, that is a line that I do not think should be crossed.
11.1.2007 10:52am
ellisz (mail):
To answer the question posed above by UW2L, many large companies now require firms bidding for work to break down who will be doing that work, and make it very clear that unless that group is sufficiently diverse, the work will go elsewhere. Under these terms, a firm with too few diverse lawyers (I don't fully get what that means either, fwiw) may lose work it would otherwise get to a firm that trots out the right percentage.

I'm not sure how this doesn't violate Sec 1981, but it's very common now. The lack of litigation presumably owes to fear that the filing of such a suit would be the death knell for any future work from big companies (despite the anti-retaliation effect of sec 1981).
11.1.2007 11:04am
Houston Lawyer:
Some large corporations, with Shell being the most aggressive, want the minority or female status of attorneys broken out on their bills. So you have Black hours and female hours specifically broken out.

While I am not aware of law firms hiring women or gays with lower credentials than their other attorneys, large law firms will ignore their stated hiring criteria to hire a sufficient number of minority attorneys. While we're collecting data on diversity, we should also find out the qualifications of these "diverse" hires vis a vis their peers that are hired.
11.1.2007 11:10am
ellisz (mail):
one other risk to mandated diversity - if a firm shoves aside one lawyer for another to get the right #s, the rejected lawyer has a claim under T VII and maybe Sec 1981 (if it was based on race) if any terms and conditions of employment suffered as a result of the decision.

i suppose the firm in turn could argue that diversity was a bona fide occupational qualification, but i don't think the courts have found race to be a BFOQ outside of extreme circs (eg assigning guards of a certain race to watch certain prisoners during a prison riot.) anyone know if it's expanded beyond that?
11.1.2007 11:11am
Waldensian (mail):

What I'd like to see is some substantiation of the claims that firms make about clients when discussing their diversity hiring and retention efforts. I've had several firms tell me that clients want to see diversity in the firms they hire. Is this backed up anywhere?

Consider it substantiated. We have a number of very large clients who are quite demanding on this topic.
11.1.2007 11:16am
TRE:
So Jews count for diversity right? right?
11.1.2007 11:43am
arthck (mail):
Some large companies make quite a spalsh for themselves, touting how they demand diversity staffing from law firms. If you just read the press releases and listened to the self-congratulatory panel presentations, you'd swear this movement is sweeping the nation. Guess what? It's not.

First, when it comes to serious liability issues, large companies do almost all their hiring the way they've always done it: by re-hiring the people who did a great job last time, or hiring someone who's known to have done a great job on this issue for another large company.

Second, even the companies have ambivalent positions on this issue. For example, do they want all-white staffing on a deal with, say, a Swiss corporation? No, they don't. Do they want African-Americans to be added to the team simply for the sake of their color? No one wants that. Do they believe that, for example, there is a distinctive Hispanic-American approach to the standard M&A deal that adds real value to the deal? No they don't.

Third, for all the times I've heard about the mythical "business case" for diversity, I have yet to see a single "business case" laid out in numbers. Not even once.
11.1.2007 11:59am
CJColucci:
So Jews count for diversity right? right?

Within living memory, they did. Whether they should now is not a question I feel knowledgeable enough to pronounce upon. Anyone who is is welcome to chime in.
11.1.2007 12:05pm
Adam J:
TRE- because Jews are so underrepresented in big law?
11.1.2007 12:13pm
Sparky:
Jim: If you look at the actual study, it counted only "out" or open homosexuals. There would not seem to be anything rude or intrusive about collecting that information.

Of course, you could argue that it undercounts discrimination against people who are perceived as gay. Or penalizes firms that are willing to hire people who are perceived as gay.

Not that I disagree with you otherwise. It probably does put some pressure on people to out themselves for the benefit of the firm.
11.1.2007 12:16pm
New Pseudonym (mail):

If a firm hires only disabled black females, does it get an A+ for diversity or an F?


Depends on whether or not they are heterosexual or homosexual.
11.1.2007 12:40pm
Adam J:
Sparky- I doubt that there's much pressure to come out (of the closet) after their in (the firm). On the other hand, I suspect there's pressure on the person to come out before they are in, since that would give them the affirmative action edge.
11.1.2007 12:47pm
unconvinced (mail):
I wish one law firm would show some backbone and boast about their homogeneity. "We are all pretty much the same."
11.1.2007 12:52pm
KH (mail) (www):
"I've had several firms tell me that clients want to see diversity in the firms they hire. Is this backed up anywhere?"

See the November issue of Corporate Counsel and the related story here.
11.1.2007 1:19pm
Wahoowa:
I'm waiting for some nut to note the relative non-diverse nature of the Jones Day offices listed, mention that Scalia once worked at Jones Day, and connect the conspiracy dots.
11.1.2007 1:27pm
UW2L:
Thanks to everyone for their answers, and special props to KH for providing an actual link (extra awesome since it's Ms. JD!). The discounted billing model is an interesting approach. arthck confirms my suspicions: get the people who'll do a great job - but as the article KH linked to illustrates, diverse teams do great jobs, too. (I don't suppose GM would be keeping up this practice if it were resulting in more adverse outcomes than before they instituted the practice.) If anything, diverse legal teams doing a bang-up job for GM in this fairly high-profile undertaking could help disprove the "you're just an affirmative action hire" bias that some people hold against diverse attorneys.
11.1.2007 2:06pm
eddy:
Kudos to the diversity supremists! They've embraced racial and gender essentialism -- that sterotyping is a legitimate tool for discerning latent talents.

If their real goal is to ensure non-discrimination from firms, is cultivating the veneer of fairness nobler than practicing actual fairness? The best way to prove non-discrimination is to rig the hiring system to produce results which suggest that the system isn't rigged.
11.1.2007 3:14pm
Brian G (mail) (www):
When I was a 1L, we were at some thing and listened to potential future employers speak. Of course, all of them ran the diversity platitudes. One of them really got into it, and it was five minutes of diversity this, diversity that, when finally the guy next to me whispered (but loud enough for a few of us to hear) in a Cartman voice, "Respect my Divers-itie!"

Needless to say, the room had no enough why five or six of us busted out in simultaneous laughter.

By the way, for fun, I work at a small law firm is here is the diversity scorecard for those of you keeping score at home:

Evil white males: 5 (2 partners and 3 associates)
Hispanic males: 2 (1 partner, one associate who should be partner within a year or two)
White females: 2 (1 partner and 1 associate)
Minority females: 0
African-Americans: 0
Asian-Americans: 0
Native-Americans: 0
Homosexuals: 0 (we had a homsexual minority female, but she quit last year)
Transgenders: 0

What is our diversity grade under that system, I wonder.
11.1.2007 7:27pm
Javert:
So profiling is bad unless it's directed at law firms?
11.1.2007 8:35pm
markm (mail):
Javert: You've got the idea.

And of course, a completely homogenous group is "diverse" if it's all disabled black lesbians...
11.2.2007 1:19pm