By NELSON D. SCHWARTZ and MICHAEL COOPER Published: May 27, 2013
HOUSTON — As a partner and chief diversity officer at Thompson & Knight, Pauline Higgins was not afraid to press the issue of hiring minorities at the 126-year-old Texas law firm. But when she left in 2008, she was replaced by an associate with less influence.
Now, current and former partners say, the diversity committee meets less often, and the firm has fewer black lawyers than before. It is a trajectory familiar in many elite realms of American professional life. Even as racial barriers continue to fall, progress for African-Americans over all has remained slow — and in some cases appears to be stalling.
“You don’t want to be a diversity officer who only buys tables at events and seats people,” Ms. Higgins said recently. “It’s about recruiting and inclusion and training and development, with substantive work assignments.”
Nearly a half-century after a Texan, President Lyndon B. Johnson, helped usher in the era of affirmative action, the Supreme Court is poised to rule as early as this week on whether the University of Texas can continue to consider race as one of many factors in its admissions policy. It is a case that could have a profound impact on race-based affirmative action programs across the nation, and it has reignited a discussion of how much progress minorities, blacks in particular, have made in integrating into some of the most sought-after professions, especially since the recession.
T.J. Kirkpatrick for The New York Times—–Pauline Higgins was a partner who served as the chief diversity officer at a 126-year-old law firm in Texas. When she left the job in 2008, she was replaced by an associate with less influence.
Only a little more than 1 percent of the nation’s Fortune 500 companies have black chief executives, although there are some prominent exceptions, like Kenneth I. Chenault of American Express and Ursula M. Burns of Xerox. At the nation’s biggest companies, about 3.2 percent of senior executive positions are held by African-Americans, according to an estimate by the Executive Leadership Council, an organization of current and former black senior executives.
While about 12 percent of the nation’s working-age population is black, about 5 percent of physicians and dentists in the United States are black — a share that has not grown since 1990, according to an analysis of census data that was prepared for The New York Times by sociologists at Queens College of the City University of New York. The analysis found that 3 percent of American architects are black, another field where the share has not increased in more than two decades.
The share of the nation’s lawyers who are minorities and women, which had been growing slowly but steadily for years, fell in 2010 for the first time since NALP, the National Association for Law Placement, began keeping statistics in 1993. The deep recession not only disproportionately hurt African-Americans in many fields, but it also led businesses to make diversity programs less of a priority. And a growing number of states — including Arizona, Michigan, Nebraska, New Hampshire and Oklahoma — have moved to ban race-based affirmative action in recent years. California, Florida and Washington did so in the 1990s.
Such numbers raise the question of whether the private sector’s commitment to affirmative action and diversity programs is eroding, even as the Supreme Court again considers a high-profile case involving a public university.
“We’re at a precipice,” said John Page, the president of the National Bar Association, an 88-year-old group representing black lawyers and judges. “There is diversity fatigue. We could fall backwards very quickly.”
Even more worrisome to some people than the small number of African-Americans at the upper echelons of many organizations is a lack of progress at entry levels. In Texas legal circles, there have been some notable symbolic gains for black lawyers at the top of the profession; both the State Bar of Texas and the Houston Bar Association just elected their first black presidents. But many black lawyers said they worried that there were fewer young black lawyers in the pipeline for future leadership roles.
While blacks made up only 2.65 percent of the partners at Houston firms last year, that figure represents progress as the share of black partners more than doubled over the past decade, according to statistics kept by NALP, the law placement association. At the lower levels of firms, black lawyers have lost some ground, however. Houston firms reported that 4.74 percent of their associates last year were black, down from 4.96 percent in 2002, the association said.
Lisa Tatum, the black lawyer who will take over the presidency of the Texas bar next month, said there was concern that firms were not pursuing diversity as aggressively as they did before.
(Credit: FrontPage Mag)
“There’s no question there’s been some pullback,” said Ms. Tatum, who works in San Antonio. “There are some firms that look at what they have done, they look at President Obama, and they say we’re there.”
The recession set back diversity efforts in many fields. After the financial crisis hit in 2008, the Conference Board, a business membership and research organization, asked senior executives how the downturn was changing their priorities. Among the several challenges they deemed less pressing was “achieving diversity and representation in the cross-cultural work force.”
Somewhat lost in the legal arguments over affirmative action are the less tangible, more subtle forces that can determine professional success, more than a dozen black lawyers here, in San Antonio and elsewhere in Texas said in interviews. Social rituals can play a big role in determining who makes it on to the partnership track in the exclusive world of white-shoe firms, and whether those partners can bring in business as rainmakers.
Gerald Roberts, a black lawyer who was a partner at Thompson & Knight before leaving in 2010, said that social relationships left some black lawyers at a distance from their white colleagues and potential clients. “For the most part, they don’t go to church together on Sunday enough, they don’t have dinner together enough, and they don’t play enough golf together to develop sufficiently strong relationships of trust and confidence,” he said.
A black associate at one Houston firm, who requested anonymity so as not to jeopardize his chances of making partner, used a familiar legal term to describe his unease at work, saying he sometimes felt there was a “rebuttable presumption” that he was there to fill a quota and was not as qualified as white colleagues.
Many black lawyers leave big firms to strike out on their own or to join the public sector.
By the end of Catina Haynes’s first year in 2006 at one big Houston law firm, she said, many of the minority lawyers who had started with her were gone, along with the lawyer who recruited her. Billable hours shrank as the economy weakened, and Ms. Haynes said black lawyers did not always have advocates. “It took someone in power to pull other people in and say, ‘I want them on cases,’ ” Ms. Haynes said. She left the firm in 2010 and now works in the Harris County District Attorney’s Office.
Thompson & Knight currently has eight black lawyers, down from 17 in 2008. The overall size of the firm declined during that period as well, but the portion of minority lawyers has fallen, too. In 2008, 15 percent of its lawyers were minorities, according to the Diversity Scorecard, an annual survey by The American Lawyer, but in 2011, the year covered by the most recent scorecard, 10 percent were minorities.
“The firm genuinely had a very strong diversity commitment when I joined,” said one current partner, who requested anonymity because he was not authorized to speak publicly. He added that Ms. Higgins’s exit in 2008, the death of the firm’s former managing partner and the recession hurt the momentum. When Ms. Higgins was at the firm, he recalled, the diversity committee sat down together regularly. “You were scared not to attend,” he said.
Emily Parker, the managing partner at Thompson & Knight, said the firm was proud of its black partners and worked hard to promote diversity, but she noted that many top law firms had struggled to retain minority lawyers in recent years. She pointed out that the Diversity Scorecard survey had reported a decrease in the number of minority lawyers at top firms since 2008, even as more firms responded to the survey.
“Even though the number of surveyed law firms increased by 10 percent, the overall number of minority attorneys decreased by approximately 3 percent, which is a convincing statistical illustration of the minority-retention problem faced by Thompson & Knight and practically every law firm in the country,” Ms. Parker said in a statement. She said the firm remained focused on fostering diversity, providing law school scholarships for minority students and internships for students from historically black institutions.
Despite the challenges, some lawyers at Thompson & Knight said they saw signs of renewed progress. Ms. Parker, who was the first female lawyer hired by the firm in 1973, last year became the first woman to lead it. This spring, Marlen Whitley, who is black, was named hiring partner in the firm’s office here in Houston, and a black associate is scheduled to join the Dallas office this fall.
The firm has five black partners, more than many others and an increase from three in 2008. Still, only two are equity partners, who share in the profits of the firm. “Being an equity partner means you’ve arrived, that you have clout,” the current partner said. “It’s the brass ring.”