On Wednesday of this week, a guy named Craig Leen — Director of the Office of Federal Contract Compliance Programs in the Department of Labor — showed up in Manhattan to hold a “town hall” meeting with representatives of major law firms. The event was covered at law.com here, and then commented on by Paul Mirengoff at Power Line here. The headline of the law.com piece is “Government Warns Law Firms of Consequences for Diversity Failures.” Mirengoff characterizes the DOL’s effort as “seek[ing] to impose a radical diversity agenda on law firms.”

The gist of Leen’s presentation was that you guys have a big problem here that you need to “fix,” or there will be consequences. From law.com:

Craig Leen . . . told industry representatives at a town hall meeting in New York that the scarcity of women and minorities at firms in leading roles has been noted by the office, and it will be taking a closer look. Leen said in a brief interview after the meeting that “there is evidence of low representation at law firms and financial firms, and our goal is to fix it and work with them to do so." . . . Leen said during Wednesday's meeting that the office looks at systemic issues, “and we are seeing serious issues.”

So what’s your game plan, Craig? The law.com article describes Leen making veiled threats of cutting off federal contracts for firms that don’t meet some unstated targets. He made these remarks to the right group, since there is no collection of people more filled with a deep sense of guilt over their success than major law firm leaders. On the other hand, since federal contracts are a very small part of the business of major law firms, the chance of Leen’s threat having any meaningful effect is about zero.

But more important, what are the “serious” and “systemic” issues that Leen claims to be seeing? About half of this country is female, and 12% African American. There are around 500 major law firms (depending on how you define the term), and plenty more in several tiers below that. Among the 500 at the top, the fact is that not one has anything close to 50% female partners, or 12% African American partners. On average, the percentages are more like 20-25% female partners, and less than 2% African American. Should we conclude that there is some kind of pervasive implicit or explicit bias driving these seemingly low numbers? If so, it would be plausible to conclude that by attacking and eliminating the bias, the percentages of women and African American partners would quickly rise up to approximate their percentages in the population as a whole.

But the problem is that the hypothesis that these numbers are driven by pervasive bias is completely ridiculous. The 500 major law firms are about as politically correct and left leaning a monoculture as academia or Hollywood. Every one of them will tell you with great earnestness how diversity is critical to their mission and a focus of their efforts. Every one of them has one or multiple web pages outlining and bragging about the amount of effort they put into diversity initiatives. Every single one of the 500 major firms has some kind of diversity officer (or multiple of them) striving hard every day — or at least so they will tell you — to try to recruit more women and blacks. (Hispanics too, for that matter.) Could it all really be a big scam? And remember, if 499 of these firms were actually secretly discriminating against qualified women and blacks, that would give the 500th firm a golden opportunity to swoop in and hire the large number of remaining qualified women and blacks, and make a killing in the market place. If the “bias” hypothesis were correct, it would only take one firm to break ranks with the great conspiracy and treat women and blacks fairly to quickly bring its demographics into line with national norms, make premium profits for itself, and show the world that all the other guys are rank hypocrites. And yet, even as they all loudly proclaim their efforts to increase “diversity,” not one single firm out of 500 does this?

Meanwhile, I can tell you that on the ground at a big law firm (where I spent a 40 year career) things don’t look anything like the DOL hypothesis. In accordance with their prevalence in the general population, women have become about 50% of law school graduates, and about 50% of hires at major law firms. However, compared to men, fewer women stick around for the long term to become partners. Far and away the biggest factor driving this result is that the women have children, and many of them (but not all) then make the personal decision to spend more time with the kids and less pursuing a high-end career. Why would this surprise anyone? I devoted some considerable efforts in my life to trying to talk multiple highly-talented female lawyers out of quitting to spend more time with the kids. I had no notable success.

As to blacks, they do not exist at law schools, particularly elite law schools, in numbers nearly commensurate with their percentage of the population. This January 2018 article in The National Jurist reports that, despite being over 12% of the population, blacks at that time constituted just 9% of college graduates, and even lower percentages at elite law schools: 7.3% of the students at Yale Law School, and 4.5% of the students at Stanford Law School. This report from Harvard Law School says that black enrollment there got as high as 10.4% in the class of 2016, but has since dropped four years in a row, down to only 5.9% in the class of 2019. And sadly, from my own experience of interviewing several hundred black law students over the years, many of the already small number of blacks at elite law schools (although far from all) have law school records that put them toward the bottom of their class. That leaves a small group of blacks, constituting about 2-4 % of the classes at elite law schools, who are identified by literally every major firm as someone they would like to hire. But there are 500 of these major firms, and not nearly enough candidates to go around.

And suppose that after intensive recruitment efforts, you are able to hire several of these talented young black lawyers. From the moment you hire them, there are dozens of others trying to recruit those people away from you. These include entities like corporate law departments and government agencies (all trying to meet their own “diversity” targets), not to mention civil rights groups and other not-for-profits. Frankly, if you can end up with as high as 2% of your partners being black, you have done well. And you will need to continue working hard continuously if you want to keep the figure at that level.

Consider the case of Barack Obama. Here is a guy that every major law firm in the country would have been happy to hire; and who would very likely have had an easy route to a partnership if he had chosen to pursue that option. According to a bio at Wikipedia, Obama actually worked summers during law school for two big firms in Chicago — Sidley & Austin one summer, and the Hopkins & Sutter the next. It is almost certain that both of these firms made him offers to come back as a permanent employee. But after graduation from law school, he just wasn’t interested. He went to work for something called Project Vote registering voters in Chicago, and from there quickly transitioned into his political career.

So, Mr. Leen and the DOL, go ahead and excoriate the law firms and pretend if you want that somehow the percentages of women and blacks in the partnership ranks are the result of some kind of pervasive discrimination or bias. But that hypothesis will only mislead you as to the direction to go if you want to change the results. The fact that virtually every major law firm has roughly the same percentage of black and female partners as every other major law firm tells you everything you need to know: this is what results from all of them competing intensely for a limited number of qualified candidates.