The Absence of Diversity in Law: The Solution

Josh Schaier

The legal profession has an abysmal reputation: Knowingly overbilling clients (“churn that bill, baby!”), consistently demonstrating a flawed management structure, and turning a blind eye to insider trading.

A more systemic issue, though, is the lack of diversity of most senior lawyers. As noted in the Wall Street Journal, the law is one of the least diverse workforces in America, lower than medicine or even finance. In May 2014, following a cover story in the American Lawyer, the country’s leading law publication, a flurry of publicity revealed devastating statistics indicating that only around 2 percent of law firm partners are African American, Hispanic or Asian American. Data also reveal that fewer than 20% of female attorneys are equity partners in U.S. firms.

For decades, the argument has been that diversity in the workplace is good for business. In 1996, The Harvard Business Review noted that “it will lift morale, bring greater access to new segments of the marketplace, and enhance productivity”. It argued that diversity of opinions and individuals is extremely effective and beneficial to growing organizational trust. By improving the buy-in of all internal stakeholders, an organization better embraces its mission and can have heightened impact. To uphold the integrity of the legal profession and its pursuit of justice, both law firms and their clients will be better served if executive leadership more accurately represents this nation’s diverse population.

With these benefits in mind, the question must be asked: Why are there so few women and minorities in senior legal positions and how can law firms contribute to the solution? Like any labor market issue, this problem could be evaluated on the “demand side,” and some may write off this issue as a problem of an “unconscious racial bias” that leads to stereotyping. Whether passing women or other minorities up for acceptance to law school or promotion opportunities at law firms, this is a serious epidemic in BigLaw. Researchers, such as Mahzarin Banaji from Harvard University, explain this concept as an intangible yet pervasive trend of discrimination often disseminated from leadership. However, the supply side of the equation shows that the very small pool of qualified minority applicants to law school may better explain this lack of diversity. Black, Hispanic, and Asian students all score, on average, lower than white students on the LSAT, the rigorous exam necessary for admission. This limits their acceptance to law school, especially at the top tier programs where BigLaw recruits. Perhaps then the driver of BigLaw diversity may be in engaging younger students to become lawyers through improving access to the types of supports that help white students succeed, including preparation courses for the LSAT and career guidance.

Earlier interventions promoting academic rigor have been proven to increase diversity across the legal landscape and numerous other industries. In a recent study, young individuals in low-income communities, often minorities, were shown to have reduced access to educational and employment opportunities. Advocacy organizations such as Afterschool Alliance have demonstrated how programs help students: increasing school attendance and engagement, improving test scores and grades, keeping students safe and healthy and helping provide mentors for students who have working parents. As recently observed in the south side of Chicago, these programs can be a meaningful, power force in the lives of students by “providing these teenagers with an objective in life – a ‘visionary goal’ – worth saving themselves for”.

Meaningful investment in pre-law afterschool programs presents a fantastic opportunity for BigLaw to address systemic issues of diversity. Students will be empowered, having more interest in and preparation for the rigors of law school and legal work. Programs like NJ LEEP in Newark, NJ and the Denver Urban Debate League in Denver, CO are yielding promising results in capturing the academic interest of young minority students. Through summer programs, weekend writing sessions, mock debates and general college preparation, students recognize their potential for becoming practicing lawyers. More importantly, the data show that the majority of participants not only graduate high school and college, but also a significant amount continue on to further education, including law school. One student who participated in NJ LEEP said “..at first I didn’t take [school] seriously. But now it’s a real turnaround for me”.

These programs want to serve more students, but have had limited engagement from the legal community to carry out their mission. As seen in Legal Outreach’s most recent 990 form, the gifts from large firms are relatively small. While many large law firms often contribute six or seven figure annual contributions to legal aid services and other charities (for example, Kirkland & Ellis LLP gave more than $450,000 to the Legal Aid Society in 2012), only $5,000 to $30,000 is given to afterschool programs. Large law firms should be making significant annual contributions to these organizations who work to mold future lawyers and create a more diverse legal community. Their support would help to foster a partnership that expands these small local programs into a national collaboration, backed by the resources and expertise of the firms to better serve both students’ needs and the legal community’s interests. By making strategic, long-term investments to improve the quality and diversity of law school applicants, law firm leadership can realign the entire industry.

There must be a bold approach to solving this crisis. Some large law firms, such as Sidley Austin, engage undergraduate students in pre-law programs, but looking to younger students might prove more beneficial. Trends change slowly over time, but the results of afterschool programs indicate that they could improve diversity rates in BigLaw over a shorter time span than programs in undergraduate institutions.

It is possible to empower underserved students and create a more inclusive, legal community. Law firms simply must make this connection.

Josh Schaier is a student at NYU’s Wagner School of Public Service, where he is pursuing his Master of Public Administration, Nonprofit Management and Policy. He serves as the Communications Chair of the Wagner Philanthropy student group and is a contributing writer to the Wagner Review. Josh also works full time at NYU’s Center for Global Affairs as a Graduate Program Administrator. Previously, he spent six years working as a litigation paralegal at some of New York City’s largest law firms