Adam Liptak in the New York Times (via Lat) reports on the Richard Sander study on African-Americans in law firms. (Stuart Taylor noted the same study in June, but the Times' article is more likely to set the agenda.) The headline asks "Why Blacks Lag at Major Firms": Sanders suggests affirmative action is resulting in sub-par hires, while others trot out the typical theories of racism. I'd like to challenge the premise. African-Americans don't lag because they don't stay at law firms. Rather, white attorneys are the ones who are lagging because they don't get the same opportunity to leave law firms. The resulting lack of African-Americans in law firms reflects the greater career opportunities African-Americans have to similarly situated whites.
I may be leaving someone out, but the last three African-American associates to leave my last law firm went on to bigger and better things: one joined a liberal think-tank in a titled position, and will surely get a spectacular government job in the next Democratic administration; another became an associate professor of law at a top-twenty law school without having to publish first; and I am unaware of any 34-year-old attorney with three and a half years of legal experience, white or black, who would turn down the opportunity to become an FCC Commissioner. None are going to be in the small fraction of people ten years out of law school who make partner at the highly-leveraged firm, which is what Sander measures, but none can be said to be lagging unless one incorrectly views law firm work as the pinnacle of the legal profession. As one partner notes in the Liptak article, law firms are losing women and blacks to in-house jobs, and the law firm partners are now working for them.
There are only so many African-American attorneys to go around, and as academia, government, and private industry compete for the limited pool in the name of diversity, law firms are simply going to lose that race unless they create a separate (and illegal) fast-track for partnership for minorities the way other career paths in the legal profession do: white associates would leave law firms before they could make partner just as fast if they had the same opportunity. (And, indeed, one need only look at the attrition rate for Supreme Court clerks hired by law firms as associates for confirmation of this.) Sanders' paper (and any analysis of it) is simply going to be an incomplete look at the issue unless the entire universe of legal employment is considered.