Diversity in Practice meritocracies, incomplete June 2009 By: Arin N. Reeves, J.D., Ph.D. The Athens Group

In 1948, Claude Harmon won the PGA’s , a major championship in professional . He was lauded as one of the best golfers in America. In 1948, Ted Rhodes, a black golfer who dominated the largely ignored UGA circuit, received death threats for suing the PGA for its “Caucasian only clause” that limited participation in PGA tournaments to white golfers only.

In 1948, was Claude Harmon one of the best golfers in America or was he one of the best white golfers in America? While the former indicates an achievement of individual merit, the latter reveals a meritocracy interrupted by inequality.

The PGA responded to Rhodes’ lawsuit by making the Masters Tournament a purely invitational tournament. Rhodes was no longer banned because he was black. He was also not invited to play. Is winning the Masters a meritocratic standard for golf greatness when many great golfers were not allowed to play for much of its history?

The American Heritage Dictionary defines a meritocracy as a “system in which advancement is based on individual ability or achievement.” In practice, a meritocracy requires not just individual ability, but also the opportunity to translate that ability into achievement. The definition asks us to believe that success is inherent; reality teaches us that the inherent requires investment in order to manifest.

Many legal workplaces believe they operate as meritocracies – ability equals achievement equals success. With “Caucasian only clauses” overtly removed from the operations of legal workplaces, we believe that racial/ethnic barriers to opportunity are also gone, thereby allowing diversity efforts to be framed as a “helping hand.” The continued underrepresentation of racial/ethnic minorities in the legal professional (especially at the highest levels), however, make it critical for us to explore if we have become “invitational” workplaces where entry is open to all but opportunities are still limited to a preferred few.

When diversity is raised as a concern in legal workplaces, it is tentatively accommodated as long as it promises to abide by the code of the meritocracy. It is okay to lend a “helping hand” to racial/ethnic minorities as long as “standards are not lowered” and those who seek to succeed by the code of meritocracy are not unduly harmed. Articulating diversity as a threat to merit presupposes that our workplaces are effective meritocracies in which some individuals need assistance to succeed while other individuals advance through their own efforts. Yet, if merit is the sum of ability and opportunity, inequities in opportunity are not irrelevant footnotes. Inequities in opportunities are interrupting our workplaces from realizing their meritocratic ideals.

NALP studies show that, despite minority percentages holding steady around 20% in law schools for the past 15 years, minorities are only about 12% of law firm lawyers and they “account for 5.92% of partners in the nation's major firms (2008)…and the total change since 1993 has been only marginal.” (www.nalp.org) Are these numbers a reflection of inherent ability or inequitable opportunity?

In the Minority Corporate Counsel Association’s new study, Sustaining Pathways (www.mcca.com), minority attorneys reported higher incidences of both discrimination and unequal opportunities in law firms. 14% of minorities and only 6% of whites reported discrimination in the workplace. 16% of minorities and only 6% of whites reported being denied key assignments. 22% of minorities and only 12% of whites reported being excluded from key networking and client development opportunities. Moreover, among graduates of Top 10 law schools, 73% of whites and only 53.25% of minorities reported having adequate access to mentoring, coaching and sponsorship.

Are the most successful lawyers in law firms the best lawyers or are they the best white lawyers? Potential ability and actual achievement in law firms is carefully examined in future hires, and attorneys who have been deemed to be worthy of inclusion in law firms are rewarded and advanced based on abilities as evidenced by the meeting of billable hour requirements, revenue generation and contribution to a firm’s overall profitability and reputation. Each of the above requires opportunity in order for ability to manifest, and failure to achieve is different than not being afforded the opportunity to succeed. When the scores are tallied, it is essential to note that they reflect not just how someone played, but who was actually given full opportunity to play.

Diversity efforts have to begin with raising awareness that exclusion and bias (overt and latent) hinder true competition. Could Ted Rhodes have defeated Claude Harmon in the 1948 Masters Tournament? Could playing against Rhodes have made Harmon an even better golfer? We will never know, but Ted Rhodes was one of the people that honored in 1997 when he became the first racial minority to don the green jacket. Tiger won because of his ability, but he acknowledged the fight that many had fought for his opportunity to actually play.

Without diversity efforts to remove barriers to equal opportunity, meritocracies are interrupted ideals. Diversity does not contradict meritocracy; it completes it.

I believe in meritocracy.

That is why I believe in diversity.