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Research paper builds on work of UCLA law professor who suggests that law firm diversity efforts can be counterproductive

Ross Todd
The American Lawyer
March 14, 2007

Attempts by Fortune 500 legal departments to force outside counsel to hire more minorities and women may tempt law firms to violate federal anti-discrimination laws, an affirmative action foe says .Released Tuesday, Curt Levey, a conservative activist who helped lead the high-profile fight against the University of Michigan's affirmative action programs, says firms may violate Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination, if they give minorities special preferences in the hiring process. "Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said.

Levey presented his paper Tuesday at a Washington, D.C., forum on law firm diversity sponsored by the American Enterprise Institute.

Over the last few years, Wal-Mart Stores Inc., and others have raised the stakes for outside counsel, pressing firms to increase diversity in their ranks or risk losing clients. In one case, reported in December by Corporate Counsel, a sibling publication of The American Lawyer, Wal-Mart dumped an outside firm that didn't adequately adhere to the company's diversity program.

Levey, however, argues that law firms who have responded to client demands by putting together legal teams of a particular racial composition could face discrimination suits. "Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Law firms have long struggled with diversity issues. Just 5 percent of partners at firms are minorities, according to Minority Law Journal, another American Lawyer sibling. The National Association for Law Placement says that in 2006, 5 percent of partners in the nation's major firms were minorities, and women accounted for about 18 percent of big firm partners despite representing nearly half of law school graduates.

Levey's report builds on the work of Richard Sander, a UCLA law professor whose research suggests that law firm diversity efforts are often counterproductive as minority lawyers with "radically different credentials" than their colleagues are recruited to elite firms. Sander was on hand at Tuesday's forum and praised Levey's findings. "I think Curt is right and [using racial preferences] is an illegal part of the process."

But a diversity consultant and big firm partner at the forum said law firms are simply trying to address covert and overt racism that have long been prevalent in law firm ranks. Shirley Wilcher, CEO of consulting firm Wilcher Global LLC, conceded that hiring and staffing decisions based solely on race are illegal, but she said she is not convinced that such practices are as prevalent as Levey indicates in his report. She repeatedly praised the affirmative action efforts of the legal departments at Wal-Mart and other companies to promote diversity among outside counsel.

Akin Gump Strauss Hauer & Feld partner Michelle Roberts criticized Sander's findings that corporate firms hire minorities who have lower grades on average than white associates. Roberts said because of the wide-ranging size and culture at the firms in Sander's data, the professor's study compared "apples and oranges, bananas and bowling balls." She responded to Sander's assertion that elite law firms are recruiting minority associates with inadequate credentials, saying that she has worked hard to convince her partners that they are not bringing in "mediocre affirmative action babies." "We pay [associates] too much already," she said. "It doesn't make sense to bring in people who can't compete."

Levey is currently executive director of the Committee for Justice -- a group that promotes the appointment of "constitutionalist" judges -- though he said his work on the report was independent of his current position. Prior to joining the Committee for Justice, he served as the director of legal and public affairs for the Committee for Individual Rights, which filed the lawsuits that led to the University of Michigan Supreme Court affirmative action cases.