Your Racial Preferences

The American Enterprise Institute had an panel discussion this morning entitled "Are Law Firms Breaking the Law? Racial and Gender Preferences in Attorney Hiring and Promotion." Despite the title, there was little direct dispute about the requirements of Title VII and Section 1981. Instead, both supporters and skeptics of law firms' actions spent significantly more time discussing the wisdom and extent of racial preferences, the significance of law-school grades on attorney performance, and why more minorities don't make partner.

Curt Levey of the Committee for Justice argued that law firms typically have "no viable defense" for discrimination against non-minority attorneys. Richard Sander of UCLA School of Law, whose research previously has been discussed in Legal Times' commentary articles (including here), analyzed the hardships that racial preferences can impose on their beneficiaries. On the other side, Shirley Wilcher, president of Wilcher Global, argued that law firms have a history of discrimination to overcome and some partners still assume that minority associates aren't as qualified. Michele Roberts, a partner at Akin Gump, questioned whether law-school grades (a key element in Sander's analysis) were that significant to legal success and pointed out that becoming a partner depends on other factors. (She also said that Akin Gump's minority associates do not have substantially lower grades.)

My question: If the legal restrictions against firms complying with demands of Wal-Mart and other clients for a certain racial make-up are as clear as argued, when are the lawsuits going to start? During my years as an employment litigator, I saw employees eager to bring Title VII claims, yet thus far law-firm associates are not suing. How long is this relatively placid situation going to last?