Counsel advises breaking the law

The Civil Rights Act of 1964 outlaws racial discrimination. I supported the act in 1964, and I support it now. But it appears that some large segments of the legal profession disagree. They're urging others to violate the act, in the name of "diversity."

Case in point: The American Bar Association Section of Legal Education and Admissions "Equal Opportunity and Diversity" standard for law school accreditation, which came to my attention in a post by David Bernstein on the Volokh Conspiracy.

Standard 211 (a) reads:

Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.

Interpretation 211-1 states:

The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211.

Interpretation 211-3 states, in part:

This Standard does not specify the forms of concrete actions a law school must take to satisfy its equal opportunity and diversity obligations. The determination of a law school's satisfaction of such obligations is based on the totality of the law school's actions and the results achieved.

In other words, you must have the right numbers of blacks, Hispanics, and women. Even if you must discriminate on the basis of race—and given the low number of blacks and Hispanics in the pool of high LSAT scorers, you must discriminate on the basis of race. Even if that breaks a law—or violates the Constitution.

The ABA is not the only one counseling lawbreaking. In a more recent post, Bernstein links to the website of the Morgan Lewis law firm, which states:

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.

Or consider the Orrick law firm's statement:

The importance of Orrick's diversity goals comes from the highest levels of Orrick's leadership, who view the hiring, retention, and advancement of minority, women, and lesbian, gay, bisexual and transgender (LGBT) attorneys and staff as a critical professional imperative.

The intrepid Stuart Taylor of National Journal points out that this is standard practice for large law firms

Most – if not all – of the nation's leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.

But these preferences are at best a mixed blessing – and are often a curse – for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."

Such racial stereotyping is deplorable. But the main reason for its persistence is not white racism. It is the conspicuous use of large racial preferences. They advertise the assumption that minority lawyers (and others) cannot compete on their own merits, and they thrust them into high-level competitions that most are doomed to lose.

This tragedy will continue until we do a far better job of educating minority children. In the meantime, unless our large law firms, law schools and other elite institutions moderate their racial double standards, they will continue to hurt many of the people they claim to be helping.

Taylor cites and draws heavily on a forthcoming article to be published in the University of North Carolina Law Review by UCLA law professor Richard Sander, "The Racial Paradox of Corporate Law Firms." Taylor also points out that law firm clients provide much of the push for "diversity." What is before us is the depressing spectacle of legal and corporate elites patting themselves on the back for their support of "diversity," even as they counsel and encourage violations of the Civil Rights Act of 1964—and even as their violations hurt very many of the intended beneficiaries.

That's why I continue to support the act and oppose the use of racial quotas and preferences. I'm not much concerned about the effects on those who are discriminated against. Most of them will do pretty well anyway. I'm concerned about the effects on those who are the supposed beneficiaries of this discrimination. It sets them up for disappointment and disillusion and, too often, failure.

To its credit, the U.S. Commission on Civil Rights is looking into this matter. It is planning a briefing on the ABA standards, and five of the seven commissioners say they oppose them. Which leads to the question: Where is the civil rights division of the Department of Justice on this? Why isn't it cracking down on lawbreaking by our legal and corporate elites?