The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Taft Law Firm Recruiting for Blatantly Illegal Summer Fellowship


From the Taft law firm's website: "Each year, Taft awards up to seven fellowships to highly motivated, first-year law students who are members of historically underrepresented ethnic and/or racial minority groups."

My understanding of employment law is that it's questionable whether race is ever a lawful factor in hiring, beyond a remedial context for past discrimination by a particular company, as in the Weber case.. But that is somewhat controversial.

What I understand is not really controversial (though sophists will be sophists) is that one can't have a 100% quota based on race. Taft's summer lucrative fellowship program, which provides a lucrative salary in the 30-40K range for ten week's work, has such a quota, as it's only open to members of "historically underrepresented ethnic and/or racial minority groups."

I blogged about similar programs many years ago, and when I checked up on them a year or two later, almost all of them had changed from "open to minorities only" to "open to students with a record of dedication to the promotion of diversity" or some such. In practice, employment practices may not have changed, but those firms at the very least decided to pretend not to be enacting illegal 100% quotas.

Putting aside whether one things that law firms should be allowed to have a program like this, one generally expects law firms to be sticklers for obeying the law, for rather obvious reasons. Is there really no one at the Taft firm who noticed the existence of this program and pointed out its illegality?

As a relevant aside, one reason I expect SCOTUS will bite the bullet and issue a strong opinion banning the use of race in higher education is that SCOTUS for 45 years has been telling government (in the contracting field), employers, and universities that they may use race, but only in a very limited, targeted manner. The reaction of government, employers, and universities has been to say, "we can do whatever we want, so long as we don't explicitly use quotas," and sometimes they don't even stop there, as the Taft example demonstrates.

Today's SCOTUS majority might have been willing to cut, say, Harvard some slack if Harvard had really tried to use race-neutral means to achieve "diversity" and then only used race in a limited way. Instead, Harvard's modus operandi has been to have soft quotas with (im)plausible deniability. I don't think the Court is willing to play this game any longer.