A RECENT PSEUDO-SCANDAL at the Justice Department is yet another depressing reminder of intractable racial taboos--although not the kind we usually hear about from hand-wringing pundits and civil-rights scolds.
At the end of October, the New York Times accused the Justice Department of covering up a study critical of its "diversity" hiring and management. The department had posted the study--a $360,000 piece of boilerplate from the diversity-consulting industry--on its website. About half the text had been very visibly blacked out. Among the redacted portions, gleefully reported on the Times's front page, were such standard "diversity" findings as the fact that more minority lawyers than white ones perceive "stereotyping, harassment and racial tension" in their workplace.
For the Times and likeminded Bush administration critics, the story was a glorious twofer: Not only was Attorney General John Ashcroft, that scourge of civil rights, abusing his minority employees, but he was trying to conceal it. Senator Edward Kennedy blasted the department for ignoring "diversity" issues. Representatives John Conyers Jr. and Jerrold Nadler issued a demand, in self-professed "outrage," that the Justice Department's inspector general investigate Diversitygate.
This scandal was a fake. The missing portions of the diversity study (later exhumed by a computer sleuth) had been redacted for a perfectly good reason: A rule in the Freedom of Information Act exempts advisory and "predecisional" material from disclosure. The deletions contained positive information about the department, just as the posted text contained "negative" findings, such as the higher attrition rate of minority hires.
But there was a scandal in the episode, albeit a longstanding one: the enduring charade about minority underachievement in the workplace. Every month, businesses and government agencies lavish vast sums on diversity "consultants" to come up with every reason other than the correct one--the skills gap--for why they do not have a proportional number of black and Hispanic employees. And, just as regularly, elite opinion-makers hold up the results of such sham studies as proof of American racism.
The Justice Department's recent diversity study, produced by KPMG Consulting, was a classic of the genre. Here was page after page of complicated graphs calculating to the hundredth of a percentage point the ratio of black, Hispanic, and female attorneys in every possible position within the department. Here was the disparagement of the white male "dominant culture norms," along with the call to "be more creative about defining qualifications" (i.e., to gut standards for minorities). Here was the inevitable push for tying the pay of managers to their promotion of minorities. But, above all else, here was the scrupulous, all-encompassing silence on every page of the document about why this futile exercise was undertaken in the first place: the dearth of qualified minority attorneys to fill those minutely tabulated Justice Department slots.
The real missing data from the Justice diversity study are these: In 2002, only 29 black applicants were qualified without a racial boost for a top-ten law school (from which the elite branches of the Justice Department recruit), compared with 4,500 college seniors nationwide, as Jonathan Kay has reported in Commentary. The situation was identical a decade ago: Only 24 black applicants met the academic requirements for the top 10 percent of law schools in 1991, according to Stephan and Abigail Thernstrom. Naturally, those schools were not about to let the lack of preparedness among minority applicants stand in the way of demonstrating the schools' high-minded embrace of racial balance. They admitted 420 blacks to their first-year classes anyway, thus ensuring that nearly all would start out with a disadvantage compared with their white and Asian peers.
The results of such racial double standards are predictable: Over a fifth of affirmative-action law students from the 1991 cohort, for example, dropped out. With few exceptions, black students post grades near the bottom of their class. As a result, almost none qualify for law review. The bar exam failure rate for affirmative-action beneficiaries is far higher than for merit-based admits. Nearly a third of the 1991 quota admits failed after three attempts, a rate seven times that of whites, according to the Thernstroms.
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.
But faced with the choice of copping to bias or explaining the difficulty of finding qualified minority applicants, there's not a prominent organization that won't fall on its sword as a racist. (The Jayson Blair fiasco at the New York Times offered a variant on this formula: The Times preferred to let its journalistic standards be impugned rather than admit that it had overlooked reporter Blair's patent failings because of his race.) And so the New York Bar, skewered by its black associates, dutifully ordered itself into diversity training and set itself ever more rigorous hiring and promotion goals, as if its members hadn't already been frantically trying to find and promote black attorneys. Likewise, the Justice Department, accused by its minority employees of "harassment and stereotyping" and accused by the press of not hiring and promoting enough minorities, has merely hung its head and promised to do better through new undertakings like a loan repayment program and more "equitable" assignment of cases.
Although an event sometimes forces momentary honesty about the skills gap, the racial taboo always triumphs in the end. While covering the recent Supreme Court affirmative-action challenges, for example, even the liberal media could hardly avoid mentioning the 200-point SAT gap between whites and Asians, on the one hand, and blacks and Hispanics on the other. But those moments pass without a trace, and the New York Times and other press outlets quickly go back to reporting on the underrepresentation of minorities in this or that organization as a sign of bias, as the Wall Street Journal did in November, informing readers that "high turnover among people of color" suggests the employer does not value diversity.
The drive of elite institutions to fill their token roster of minorities, no matter the costs to the tokens or to their own standards, only perpetuates the racial taboo by giving a false impression. The smattering of black and Hispanic faces on the bench, in law and medical school classes, and on the brochures of selective colleges makes it harder for the public to grasp how severely minorities lag behind the norm in reading and math. Worse, preferences keep the institutions that use them on the sidelines of educational reform and cultural change. Remove their ability to practice racial window-dressing, however, and many would try to actually shrink the skills gap rather than just cover it up.
The only time the University of California system sought to systematically improve California's abysmal schools was after the U.C. Regents, in 1995, banned the use of race in admissions. In response, university administrators launched a massive outreach program into high schools and elementary schools to prepare minority students for competitive enrollment. Had the Supreme Court struck down educational preferences this summer, many colleges, law schools, law firms, and businesses would have been forced into a similar crusade--at least until the next dodge for covertly reinstating quotas had emerged.
In her recent decision upholding affirmative action, Supreme Court Justice Sandra Day O'Connor gave colleges and law schools 25 years to continue papering over the racial skills gap. Expect another 25 years of inaction on minority skills, more pseudo-scandals about low minority representation, and an ever fatter diversity industry laughing all the way to the bank.
Heather Mac Donald is a contributing editor at the Manhattan Institute's City Journal and the author of "Are Cops Racist?"