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Why Big Law Has a Stake in the Harvard Admissions Case

June 16, 2021, 9:00 AM

The U.S. Supreme Court is clucking like a chicken about affirmative action in higher education. It just requested that acting Solicitor General Elizabeth Prelogar weigh in on the highly-watched Harvard College admissions policy case—which means the high court can duck the issue of race as a consideration in college admissions until later this year. Talk about delay tactics! Does the court need more amicus briefs on the issue to make up its mind? And is there any doubt that the Biden administration will take the side of Harvard and affirmative action?

Oh, how much I miss Justice Antonin Scalia. He never dodged controversy. I bet he could have persuaded the court to hear the case. Even if you didn’t agree with his rulings, you could always count on him to be blunt, colorful, and brazen. He was also an unabashed snob, especially on education.

In 2009, when asked by a student at American University Washington College of Law how she could become “outrageously successful,” Scalia initially offered a bromide: “Work hard and be very good.” But then the unvarnished Scalia kicked in, and he proceeded to tell her that she’d have a chance in hell of achieving something awesome, like clerking for the Supreme Court, because of her lackluster law school.

“By and large, I’m going to be picking from the law schools that basically are the hardest to get into,” Scalia told the poor student. “They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?”

OK. Got it! Woe to those who didn’t get into a top five law school.

Economist Joni Hersch, a professor at Vanderbilt Law School (ranked #16 in U.S. News & World Report), relays that Scalia anecdote in her upcoming Tulane Law Review article, arguing that affirmative action is critical to achieving diversity in the professions and society at large. Her thesis is that elite undergraduate schools feed elite professional schools, and that considering race in admission to undergraduate institutions is vital to sustaining a diverse pipeline.

Hersch’s research, which analyzed over 500,000 college graduates—JDs, MDs, and MBAs comprise 12% of the total— is bound to get attention. Although WilmerHale, which represents Harvard University in the case declined to comment, Hersch’s report lends support to the university’s affirmative action arguments. Song Richardson, the former dean of University of California, Irvine School of Law, and incoming chancellor of Colorado College, says she’s not surprised by the finding, though she’s been critical of the profession’s fixation with academic elitism. (In a Bloomberg Law “Black Lawyers Speak” podcast, she said, “we’ve become obsessed with rankings as shorthand for merit,” because “that’s a very seductive, easy thing to do.”)

Big Law leaders might regard the Harvard case as a mere curio (unless, of course, their progeny is the throes of applying to colleges) but maybe they should listen up, particularly if they’re truly committed to diversity and equality at their own firms.

Hersch finds that elite colleges play an “outsized role” in both the public and private sectors, and that ”the benefits to attending a more selective college is greatest among Black and Hispanic/Latino students and those who have less-educated parents.”

For instance, among those few Black lawyers who’ve ascended to top leadership positions at major firms—such as Fred Nance of Squire Patton Boggs, Ben Wilson of Beveridge & Diamond, Ernest Greer of Greenberg Traurig, and Kevyn Orr of Jones Day—all went to both selective colleges and law schools.

Hersch tells me that minority students who go to selective colleges can hit the ground running in law school—which is key because “first year grades determine everything.”

For everyone, “the likelihood of earning an advanced degree from an elite institution is overwhelmingly related to the status of an undergraduate institution,” she writes. “Those with elite undergraduate degrees are 10 times more likely to earn an elite advanced degree as are those with an undergraduate degree from a broad access institution,” she reports in her study.

As for the notion that going to a prestigious professional school can “scrub” or balance out an undergraduate degree from a humble institution, Hersch says: Fuhgettaboutit!

“If you didn’t go to an elite undergraduate school but go to an elite graduate school, you won’t catch up,” Hersch tells me. “Something happens in the process of going to an elite college—networking, learning a common language.” Her research also shows that students “without elite undergraduate degrees do not catch up monetarily,” noting that “among men who earn elite advanced degrees, those with an undergraduate degree from the most selective universities earn 41% more.” And yes, those earnings premiums pertain to JDs, as well as MBAs and MDs.

Hersch’s research also shows that minorities who graduate from elite colleges, based on the list of top tier schools in Barron’s Guide to the Most Selective Colleges, ultimately perform comparably to Whites with similar academic backgrounds, decimating the myth that many minorities lack the ability to hack it in top law schools. “Among those who earn a bachelor’s degree from an elite institution, there is little difference by race or ethnicity in the probability of earning an advanced degree,” she writes, adding that’s also true for “probability of being licensed in the profession.”

Big Law is always complaining about the dearth of qualified minority lawyers in its pipeline, but it should do more than be passive watchers, offers Hersch. “Firms often take the attitude that this is the market and they should let it play out,” says Hersch. “But given the outsized influence of the legal profession on society I think they can do more.”

For starters, Hersch suggests that firms take an active role before the law school stage. Though many major firms have programs that focus on minority high school or college students, Hersch emphasizes that they must be long term programs. Not only would that give minority students exposure to the law and mentoring, she says, but “it may help them gain admittance and success at a T-14 school. And it helps firms identify talent earlier than waiting until they are summer associates and already behind Big Law’s expectations.”

Back to Scalia. I didn’t see eye to eye with him on most matters, but I agree with him on this count: Law is a hopelessly, irrationally credential-obsessed profession. Despite all the talk about how law firms should cast a wider net and consider students from lower ranking law schools to increase diversity, there’s scant evidence that’s happening. So if firms won’t change their elitist mindset, doesn’t it make sense to ensure that the top T-14 increase or at least maintain its flow of diverse students?

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com

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