Affirmative Action’s Demise Threatens Big Law Diversity Pipeline

The Supreme Court’s landmark ruling on affirmative action in college admissions poses another challenge to efforts to improve diversity at Big Law firms.

The high court on Thursday struck down race-based admissions policies at Harvard College and the University of North Carolina. The decision threatens to narrow the recruiting pipeline for major law firms, which traditionally stick to rigid standards and recruit from only a small number of elite law schools.

The ruling “could negatively impact the number of students from underrepresented groups who are able to attend law schools,” said Dennis Quinio, diversity chief for global law firm Allen & Overy. That “would make it even more difficult to bring diversity into law firms and the legal profession,” he said.

Some law firm leaders said the court’s decision won’t affect their diversity, equity, and inclusion priorities. Other observers worry that a groundswell of diversity initiatives in the wake of the 2020 police-killing of George Floyd, and the reckoning that followed, won’t last.

The court’s decision “is now going to put on display how committed you actually are to diversity,” said Lauren Jackson, assistant dean of career services at Howard University’s law school.

Efforts Continue

People of color made up 28% of law firm associates last year, up from 23% five years earlier, according to a survey of roughly 150 firms by the National Association of Law Placement.

The number dwindled to 11% at the partner level, up from 8% in 2017.

Losing affirmative action could give firms an excuse to backpedal current initiatives, said Tsedale Melaku, a City University of New York professor who has studied legal industry diversity.

“Now there’s legal opportunity to allow for these types of inequalities to continue to persist,” said Melaku.

Two of the country’s 15 largest law firms—Gibson Dunn & Crutcher and Greenberg Traurig—plan to continue to prioritize diversity in recruiting and retention, their DEI leaders told Bloomberg Law.

“Maybe it will change how you do things, but I don’t see how this decision will change a culture that is focused on this,” said Zakiyyah Salim-Williams, Gibson Dunn’s chief diversity officer. She said clients are looking to outside law firms to meet increasingly ambitious diversity standards.

“We will continue to work with a large cross-section of professional, civic, and legal organizations and educational institutions to support the growth of the pipeline of new lawyers from communities currently underrepresented in the legal profession,” Nikki Lewis Simon, Greenberg Traurig’s DEI chief said in an email.

‘Data Doesn’t Lie’

The high court sided along ideological lines, finding that race-based admission policies violate the Constitution’s equal protection clause. The liberal wing of the court criticized the majority opinion’s “color-blind” approach.

Justice Ketanji Brown Jackson in a dissenting opinion noted that about 13% of the country’s population is Black, but Black lawyers account for a significantly smaller share of lawyers.

“Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes this worse, not better,” she wrote in her dissenting opinion.

Law firms have made gains since NALP started measuring diversity in 1991, Gray said, but there is still much room for improvement.

Black lawyers accounted for less than 6% of law firm associates last year, up from more than 4% in 2017, according to NALP. The share of Black partners ticked up slightly to more than 2% during the same time.

“The data doesn’t lie to you,” Gray said. “It’s a way to look at it and really measure your progress and be honest about what progress—or not—is being made.”