The Magazine

The Diversity Taboo

You can't solve a problem no one will talk about.

Jan 26, 2004, Vol. 9, No. 19 • By HEATHER MAC DONALD
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The racial charade requires that law-school administrators express deep puzzlement about such facts, even though their own admissions policies produced the disparity. The dean of Vanderbilt Law School, Kent D. Syverud, recently told the Chronicle of Higher Education that the lack of minority representation on the school's law journals is "one of the biggest challenges I've faced as dean." Yet Syverud defended the use of racial preferences in law-school admissions in the recent Supreme Court affirmative action case Grutter v. Bollinger, so he is merely reaping what he has sown. True to form, many law schools, like New York University and the University of Pennsylvania, have rejiggered traditional law-review requirements to guarantee the presence of face-saving blacks and Hispanics on the review masthead.

The genius of the diversity charade is to turn a supply problem into a demand problem. The reason the Justice Department does not have a proportional sampling of black and Hispanic attorneys is simple: The numbers just aren't there. But the diversity industry tells us that the real reason behind the lack of racial proportionality is demand: Employers are not trying hard enough to recruit minority employees, and when they do hire them, they subject them to racism--which can be rooted out only by more diversity-industry interventions.

A fail-safe source for proving work-site racism is the minority employee survey. In 1990, New York's most exclusive law firms noticed that they didn't have many black partners. The obvious explanation--inadequate supply of partnership material--was taboo from the start. So New York's legal titans began the arduous process of ignoring the obvious. Working through the bar association, they hived off into a decade-long series of diversity committees and subcommittees, among whose initiatives was a poll of minority associates about their work experiences. Eureka! Here was an explanation for low minority headcount that the firms could live with: According to the subcommittee on minority retention, over 60 percent of black lawyers reported "race-related barriers to their professional development." Similarly, the recent Justice Department diversity study found that "significantly more" minorities perceived racism on the job than whites.

Now what is the cause of this perception? It may of course be the case that these elite employers, despite their years of schooling in the country's most liberal institutions and despite their strenuous efforts to find as many black employees as they can, are in fact racist. But here is an alternative possibility: Affirmative-action beneficiaries, having been admitted to organizations for which they are significantly less qualified than their peers, experience difficulties performing up to the norm and attribute those difficulties to their environment. Find an honest partner at a high-powered law firm, for example, and he will acknowledge, only on deep background, that many black associates struggle mightily with legal writing. But racial prejudice is the easy culprit--and little wonder. Minority students are fed a steady diet of victimology in colleges and law schools. Critical Race Studies courses in law schools, for example, maintain that legal rationality silences the minority voice. So, it is hardly surprising that overmatched minority attorneys blame bias for their plight.

The diversity charade's most bizarre feature is this: Employers and universities would rather take the rap for racism than tell the truth about minority underperformance. After the poll showing that black New York attorneys blame their firms' bigotry for their lack of advancement, the most that those firms would meekly say in their own defense was that such "perceptions are not based on the animus that we normally associate with racial discrimination." An understatement, if there ever was one.

Far from possessing "animus" against blacks, New York's most prestigious firms, like the law elite everywhere, spend hundreds of thousands of dollars a year on diversity recruiting, diversity support groups, and diversity social functions like the party hosted last fall by the firm Paul Weiss. Young minority law associates from across the city were invited. The fancy Judson Grill was rented out, John Payton, the black attorney who argued Grutter spoke (gloating about the victory), and guests left with goody bags containing diversity paperweights, copies of the Grutter opinion, and a magazine called Diversity Inc. with articles on how to tell if firms value--you guessed it--diversity.