How Diversity Fails, Even Without Villains

Diversity efforts in law firms can fall short even where support is broad and intentions are good. Harvard Law professor David B. Wilkins explains why, and his answer has less to do with prejudice than with scarcity. Partner time is finite. Senior lawyers have to decide where to spend it, usually on very little information, so they pattern-match. They invest in associates who resemble the lawyers who succeeded before them, and hesitate over profiles they have watched churn. That doesn't make the partner a bad person, according to Wilkins. It makes them "a person in a competitive market."

The divergence matters more each year, because the intake keeps shifting. Women are now a majority of entrants at many law schools, closer to two thirds in much of Europe and Latin America. Yet the path still rewards the profile it was built around, a lawyer with someone else absorbing the domestic load. Men with children post the highest incomes of anyone, while women more often step back to manage a two-career household. Wilkins calls the result a growing mismatch between supply and opportunity.

Big Law tells this story as a tournament: associates compete, the best rise, partnership is the neutral prize. Wilkins argues the metaphor hides how lawyers are actually made, through access to good work, real feedback, and client contact. Partners are not umpires. They are busy people allocating training time, and associates who already know the unwritten rules or have a sponsor draw the developmental work while equally capable lawyers draw the repetitive kind. Money helps at every step, and Wilkins says so plainly. Family wealth shapes who reaches Harvard or Yale and who succeeds at Southwestern, who leaves school without loans, who can move for the right job, who can absorb a lean year. He describes social capital converting into educational capital, then into workplace opportunity, then back into capital again, a loop about to tighten around the eighty trillion dollars passing between generations. 

In the era following Students for Fair Admissions v. Harvard, institutions have grown wary of the word diversity itself. Fellowships and targeted recruitment programs have largely disappeared, having become harder to defend under the Court's rationale. Wilkins is careful about the cause, however. The SFFA decision reached admissions, but much of the retreat traces to the Trump administration, whose position, he notes, goes beyond what the Court actually held. Despite the shifting landscape, Wilkins rejects the inference that firms can now stop thinking about the problem. The demographics have not changed, and neither have the structural weaknesses that the focus on diversity exposed.

The blocker, in Wilkins's account, is structure rather than animus. Firms promise to train everyone and cannot, and the mentorship that decides careers gets rationed by instinct. That failure lands hardest on underrepresented lawyers, which is why he reaches for Lani Guinier's miner's canary, where what happens to the few is a reading on the toxin in the whole system. The corollary is the encouraging one. A firm that fixes how it distributes training, sponsorship, and real work does not simply become more diverse. It becomes more meritocratic, better at finding the talent it is currently wasting.

David B. Wilkins is Vice Dean for Global Initiatives on the Legal Profession and Faculty Director of the Center on the Legal Profession at Harvard Law School.