The World of Document Review #3 Diversity, Law Schools and the Big Law Track

In my previous post, I said I would lay out the meta-narrative that created the diversity I witnessed in the “pop-up” law firm of document reviewers at the orientation in the ballroom of the Hilton in D.C.  It was an orientation for a huge merger, and my former law firm, Arnold & Porter, was the lead counsel, with other big law firms joining in. The question I asked in the post was whether the diversity I saw really rocked or whether it reflected a sad fact. The meta-narrative for my purposes begins in 1986, when I graduated from Georgetown University Law Center.

I worked my butt off in law school and it paid off. In the first year I graded on to the law review by being in the top seven percent of the class. Back then, in some schools you could clinch a spot on the coveted law review based solely on your grades; you didn’t have to compete for a spot by “writing on,” which required submitting a law-review type of paper to be assessed by the review’s board.

That result put me on a trajectory that was typical for students at the top of the class, one that in many cases would include working in a large law firm such as Arnold & Porter, what today we call Big Law, after graduation. That trajectory involved few persons of color, as was the case in my class of ’86. Why? Many of you know why, but I’m going to say a few things about this for my readers who haven’t been steeped in this stuff.

The first reason is that law schools, especially the top ones that are feeders to Big Law, weren’t diverse. They’ve made progress since then, but the numbers are still not great, or even good. Using the U.S. News & World Report 2017 rankings—which are in a love/hate relationship with law school deans—the top three law schools, Yale, Stanford, and Harvard, in terms of diversity rank thirty-eight, forty, and thirty-five, respectively. None of the top ten law schools, except for Cornell, are in the top twenty-five. Georgetown comes in at 135! (I might be a bit off—I kinda lost count after 100.)

Second, once admitted, minority law students don’t perform as well academically as their white counterparts, with very few landing in the top ten percent of their class, which is a hard cut-off for many Big Law firms. There’s a ton of literature exploring why that might be the case. It would be crazy to describe it all here. But there’s an interesting 2015 empirical study by Alexia Brunet Marks and Scott Moss revealing that even after controlling for, among other things, LSAT score, undergraduate GPA, college quality, college major, and work experience, students of color graduated from law school with significantly lower grades.

Why might that be the case? The authors suggest that the nature of legal education plays a role, including the alienation that students of color experience in and out of the classroom. Relying on studies of human cognition, they also suggest that teachers bring an unconscious bias when it comes to grading non-anonymous seminar papers or class participation. Another reason relates to the “stereotype threat,” a contested idea which posits that if  “your group,” e.g., minorities, (remember independent presidential candidate Ross Perot’s use of “you people” and “your people” to refer to both victims and offenders of inner-city crime when speaking to the NAACP’s national convention in 1992? Oops, you weren’t born then…) is negatively stereotyped in some way, such as poor academic performance, you may also perform poorly because of the anxiety you feel from laboring under the stereotype. Deborah Merritt of Ohio State’s Moritz College of Law also suggests that students of color may also lack the social capital that may help them achieve academically: Many might be the first in the family to go to law school, let alone college. They haven’t grown up within a network of lawyers among family and friends that can support them as they slog through law school—and help them get a job.

I’ve just shared with you some stuff in papers and studies. But I’ve lived through and seen this stuff. When I was at Georgetown there was an undercurrent of resentment towards students of color coming from a segment of white students: We didn’t belong there and were taking the seats of far more qualified candidates. As for alienation and subconscious bias, don’t take it from me. Read my posts with excerpts from my student’s article chronicling the perils of navigating through law school as a woman of color. The stereotype threat and anxiety? If you think that’s a flimsy excuse, think about being assaulted, and I mean assaulted, by UCLA Professor Richard Sander’s much criticized 2004 study suggesting that black law students are ill-served by affirmative action that places them in the elite law schools where they struggle academically. They should instead go to lower-ranked schools where they can thrive and increase the number of blacks in the legal profession. I can’t tell you how many students came to my office traumatized by that guy’s words.

How did I make it to Big Law and become a law professor despite all of these headwinds? It might have something to do with that social capital thing. I didn’t have lawyers among family and friends. But my father was a diplomat who later in life got a PhD from Louisiana State University. My mother became a socialist and relished political debate. So I grew up in an academic environment. I was comfortable in it.

But the most important reason for achieving what I wanted despite a road littered with obstacles was that I didn’t give a shit.

After almost dying and becoming a quadriplegic just before starting law school, the doubters and the haters were the least of my worries.

And if they tried anything, I’d go super-cripple on them.

Assholes.

On that happy note, tune in next time for a continuation of my take on the meta-narrative that gave rise to the pop-up law firm.

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