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Diversity and Affirmative Action: Is O'Connor's Sunset Here?

By William Peacock, Esq. | Last updated on

The Grutter v. Bollinger decision always seemed a bit odd to me. The oddity wasn’t in the court’s holding. Affirmative-action, race-conscious admissions, and the best means of achieving diversity are certainly issues that can be debated at length, with no clear right answer. Do they help? Are they racist or reverse-racist? How much consideration of race is too much?

No, the oddest part was the sunset provision. Justice O’Connor expressed a hope (or holding) that affirmative-action would not be needed in twenty-five years. Was this a time limit for such policies, or was it a hopeful prognostication of a future where such measures would not be needed, and by extension, would no longer exist?

Is that time now? Does the decline of diversity efforts by law firms and the possible end of affirmative-action indicate that we’ve reached O’Connor’s utopic future, fifteen years early?

Fisher v. University of Texas: Adios Affirmative Action?

Chief Justice Roberts once said, in a case that struck down race-specific affirmative-action plans used in public schools in Seattle and Louisville, Kentucky, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Justice Clarence Thomas began his passionate mixed concurrence-dissent in Grutter with a shortened version of a Frederick Douglas speech: "All I ask is, give [the black man] a chance to stand on his own legs! Let him alone! ... [Y]our interference is doing him positive injury." Needless to say, he voted against affirmative-action.

Many people, including sixty percent of FantasySCOTUS prognosticators, believe that the lower court, and the affirmative-action plan at UT, will be reversed, and maybe Grutter v. Bollinger could be repudiated as well.

Diversity Efforts Dwindling in BigLaw, Elsewhere

It's a well-known fact that the legal job market is in decline. The topic of the week, at least in the legal blogosphere, is dwindling diversity efforts and the disproportionate effect of the bad economy on women and minorities. In 2010, for the first time since the National Association for Law Placement (NALP) began collecting statistics, the share of female and minority lawyers decreased, reports The New York Times.

Pauline Higgins, a former partner at Thomson & Knight, has been widely cited as an example of the decreased diversity efforts. Before her departure from the firm in 2008, she served as the chief diversity officer. She was replaced by a less-influential associate. Since then, the diversity committee meets less often, and the number of black lawyers at the firm has reportedly decreased (though one would guess that the number of lawyers generally has decreased as well).

It's not a secret that there is a disproportionately small number of black professionals, from dentists and doctors (5 percent, compared to 12 percent of the working population) to CEOs (1 percent), and even lawyers. The question is: what is the solution? Progress was either minimal or nonexistent over the last decade, even with "diversity efforts." And should firms continue the ineffectual programs, even with the arguably bigger issue of surviving the recession, or, is it time to reevaluate the means to a noble goal?

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