How Diversity Fails, Even Without Villains

Diversity efforts in law firms often fail without anyone behaving badly. In this conversation, Harvard Law professor David B. Wilkins explains why. Mentorship is genuinely scarce, and partners must decide where to invest it on very little information. The heuristics they fall back on, betting on associates who resemble them and avoiding those they assume will leave, are individually rational and collectively damaging. As Wilkins puts it, "That doesn't make me a bad person. It makes me a person in a competitive market." The discussion ranges from Harvard Law School's Black alumni studies and the national After the JD project to law firm tournament theory, gender and race gaps, mentorship, social capital, Students for Fair Admissions v. Harvard, urban law schools, and the future of professional opportunity.

A first major issue is the difference between entry-level diversity and career-long equality. The relevant legal principle is that employment decisions may not discriminate on the basis of race, sex, or other protected characteristics, but formal access at the beginning of a career does not itself ensure equal opportunity over time. Wilkins draws on longitudinal research from After the JD, a national study tracking thousands of lawyers who entered the profession in 2000, to show that many women and lawyers of color enter law firms in significant numbers, yet experience different career trajectories as the cohort ages. Women in the study earned substantially less than men after two decades, with gaps shaped by departures from large firms, part-time work, promotion differences, origination credit, bonuses, childcare responsibilities, and the structure of elite legal careers. Wilkins emphasizes that the profession is increasingly “feminized” at entry, with women often constituting a majority of law students, while the dominant career path still reflects assumptions built around a worker with few caregiving constraints and substantial household support.

The second major issue is how law firm promotion systems can generate unequal outcomes without relying primarily on overt prejudice. The conventional story of large law firms is often a tournament model: associates compete, the best performers rise, and partnership is treated as the neutral reward for merit. Wilkins argues that this model obscures the institutional reality that lawyers are made through access to high-quality work, feedback, sponsorship, and client-facing opportunities. Partners are not neutral umpires in a pure competition; they are busy economic actors deciding where to invest scarce training time, often on the basis of limited information, perceived fit, prior models of success, and assumptions about who is likely to stay. In that environment, associates who already understand the unwritten rules, resemble prior successful lawyers, or have access to influential sponsors may receive better developmental opportunities, while equally talented lawyers may be left with repetitive work and weaker pathways to partnership.

A related legal and institutional issue is the post-Students for Fair Admissions environment for diversity programs. The Supreme Court’s decision in Students for Fair Admissions v. Harvard addressed race-conscious admissions under the Equal Protection Clause and Title VI, but Wilkins observes that its practical effect has been broader: many institutions have become wary of even using the language of diversity, and some have reconsidered race-targeted fellowships, recruitment programs, and public-facing commitments. At the same time, private employers remain governed by anti-discrimination principles, including Title VII, and cannot solve structural inequality simply by abandoning the subject. Wilkins’s view is that the current moment should force institutions to ask harder questions about what their diversity programs were actually doing, whether they were changing the systems that allocate work and opportunity, and why decades of formal commitments have produced only modest changes in the upper ranks of major law firms, particularly for Black lawyers and Black women.

The discussion also examines social capital as a central but often invisible driver of professional opportunity. Wilkins connects race, gender, class, geography, and family wealth to the pathways that lead from elite colleges to elite law schools, from elite law schools to large law firms, and from large law firms to prestigious public, private, and in-house roles. He also discusses research on urban law schools, where graduates of non-elite but locally embedded institutions may gain access to large firms because those firms need talent, operate in local markets, and encounter alumni and deans through bar, business, and civic networks. The broader point is that opportunity in the legal profession is not distributed only by grades, credentials, or effort; it is also shaped by networks, family resources, student debt, geographic proximity, and knowledge of how legal careers actually work. Understanding those forces is essential to any serious account of why diversity fails even in institutions that sincerely value it.

The broader implication is that diversity cannot be treated as a separate initiative layered on top of unchanged professional structures. If law firms, law schools, legal departments, and courts want more inclusive leadership, they must examine the systems that distribute mentorship, evaluation, sponsorship, flexibility, client contact, credit, and trust. This conversation offers a data-rich and institutionally grounded framework for understanding inequality in the legal profession as a problem of structure, incentives, and opportunity rather than only individual bias. David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School, Vice Dean for Global Initiatives on the Legal Profession, and Faculty Director of the Center on the Legal Profession. His scholarship focuses on the legal profession, law firms, lawyer careers, globalization, diversity, and the changing institutions that shape legal practice.