What should a bureaucrat do when the behavior of 100% of 500 firms refutes the bureaucrat's assumed reality?

From The Labor Department Thinks It Can "Fix" The Lack Of Racial Diversity At Major Law Firms by Francis Menton. This is either a problem of federal government bureaucrats overstepping the law and their remit, or a problem of federal government bureaucrats not knowing enough to be effective in their mission. Or both, the much more likely answer.

On Wednesday of this week, a guy named Craig Leen — Director of the Office of Federal Contract Compliance Programs in the Department of Labor — showed up in Manhattan to hold a “town hall” meeting with representatives of major law firms. The event was covered at law.com here, and then commented on by Paul Mirengoff at Power Line here. The headline of the law.com piece is “Government Warns Law Firms of Consequences for Diversity Failures.” Mirengoff characterizes the DOL’s effort as “seek[ing] to impose a radical diversity agenda on law firms.”

The gist of Leen’s presentation was that you guys have a big problem here that you need to “fix,” or there will be consequences. From law.com:

Craig Leen . . . told industry representatives at a town hall meeting in New York that the scarcity of women and minorities at firms in leading roles has been noted by the office, and it will be taking a closer look. Leen said in a brief interview after the meeting that “there is evidence of low representation at law firms and financial firms, and our goal is to fix it and work with them to do so." . . . Leen said during Wednesday's meeting that the office looks at systemic issues, “and we are seeing serious issues.”

So what’s your game plan, Craig? The law.com article describes Leen making veiled threats of cutting off federal contracts for firms that don’t meet some unstated targets. He made these remarks to the right group, since there is no collection of people more filled with a deep sense of guilt over their success than major law firm leaders. On the other hand, since federal contracts are a very small part of the business of major law firms, the chance of Leen’s threat having any meaningful effect is about zero.

But more important, what are the “serious” and “systemic” issues that Leen claims to be seeing? About half of this country is female, and 12% African American. There are around 500 major law firms (depending on how you define the term), and plenty more in several tiers below that. Among the 500 at the top, the fact is that not one has anything close to 50% female partners, or 12% African American partners. On average, the percentages are more like 20-25% female partners, and less than 2% African American. Should we conclude that there is some kind of pervasive implicit or explicit bias driving these seemingly low numbers? If so, it would be plausible to conclude that by attacking and eliminating the bias, the percentages of women and African American partners would quickly rise up to approximate their percentages in the population as a whole.

But the problem is that the hypothesis that these numbers are driven by pervasive bias is completely ridiculous. The 500 major law firms are about as politically correct and left leaning a monoculture as academia or Hollywood. Every one of them will tell you with great earnestness how diversity is critical to their mission and a focus of their efforts. Every one of them has one or multiple web pages outlining and bragging about the amount of effort they put into diversity initiatives. Every single one of the 500 major firms has some kind of diversity officer (or multiple of them) striving hard every day — or at least so they will tell you — to try to recruit more women and blacks. (Hispanics too, for that matter.) Could it all really be a big scam? And remember, if 499 of these firms were actually secretly discriminating against qualified women and blacks, that would give the 500th firm a golden opportunity to swoop in and hire the large number of remaining qualified women and blacks, and make a killing in the market place. If the “bias” hypothesis were correct, it would only take one firm to break ranks with the great conspiracy and treat women and blacks fairly to quickly bring its demographics into line with national norms, make premium profits for itself, and show the world that all the other guys are rank hypocrites. And yet, even as they all loudly proclaim their efforts to increase “diversity,” not one single firm out of 500 does this?

The inclination to project bias onto others, make assumptions about crimes for which there is no evidence, and then use the authority of the government to solve a problem that does not exist is a major source of public dissatisfaction with our political class.

So, Mr. Leen and the DOL, go ahead and excoriate the law firms and pretend if you want that somehow the percentages of women and blacks in the partnership ranks are the result of some kind of pervasive discrimination or bias. But that hypothesis will only mislead you as to the direction to go if you want to change the results. The fact that virtually every major law firm has roughly the same percentage of black and female partners as every other major law firm tells you everything you need to know: this is what results from all of them competing intensely for a limited number of qualified candidates.