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Playing by the RulesA snapshot of race relations at century's endby Randall L. Kennedy
The lives of Lawrence Mungin and Paul Barrett crossed at Harvard, and again in the world of the law. Photograph by Neang Seng, Washington, D.C.
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Paul M. Barrett's The Good Black tells the story of an unusual lawsuit that highlights important features of racial conflict in upper-middle-class, professional life in late- twentieth-century America. At the center of the drama is Lawrence D. Mungin '79, J.D. '86. Born poor, Mungin was raised in a troubled household in Queens,
New York, that included three children. His father deserted the family, burdening his mother in terrible ways that left her lonely, exhausted, and desperately unhappy. According to Mungin, his mother tried to commit suicide on at least one occasion that he witnessed.
Yet Mungin overcame these difficulties, excelled in high school, served a stint in the U.S. Navy, and gained admission to both Harvard College and Harvard Law School. A good but not brilliant student, he yearned for secure affluence and conventional respectability. Pursuing his aims in the way he chose, however, required Mungin to become, ironically, something of a rebel. He rebelled against the dominant forms of group-oriented socialization engaged in by many black students at Harvard in the 1970s and 1980s (and today) and instead pursued his own intensely individualistic path.
He quietly defied racial-identity politics. He did not participate in black student organizations, did not sit at the black table in dining halls, did not seek out black roommates, and did not commit himself to changing society on behalf of black interests. He thought that it made little sense to come to Harvard, the apex of the white power elite, only to retreat into a black social cocoon. He believed that too many of his black colleagues insisted too strongly upon seeing too much of the world through a racial prism. While many of them worked on remembering where they came from, he worked on trying to escape the clinging grip of his roots. He saw race consciousness not as a vehicle for liberation, but as an old, unattractive cage. He sought his salvation not in challenging established protocols, but in carefully respecting them. He embraced passionately his mother's oft- stated axiom--"Play by the rules and the system will treat you right."
In 1992 Mungin joined the Washington, D.C., office of a Chicago-based law firm, Katten Muchin & Zavis (KMZ), as an associate. Having already worked at three firms, Mungin was paid a starting salary of $92,000 per year and promised that he would be considered as a candidate for partnership. Partnership can take a variety of forms, but essentially it denotes an attorney's promotion from a probationary to a tenured status. Associates at a law firm are employees. Partners are owner-managers. The lawyers who hired Mungin did not promise that he would be promoted to partnership rank. But they indicated that he would be given a fair and full opportunity to attain that position.
When Mungin joined KMZ he believed that the American Dream was coming true for him. He sensed that he was poised, finally, to grasp the considerable power, prestige, and security that flows from partnership status at a large, wealthy, influential firm. He was a bit concerned when he learned at his initial interview that he would be the only black attorney in the D.C. office of KMZ (and one of only a very few black lawyers in the firm as a whole). But Mungin, confident in his own abilities, declined to allow fears of racial bias to deter him from pursuing what he perceived as a career-enhancing opportunity. Again he embraced his mother's advice to "play by the rules."
Then came the fall.
After joining KMZ, it became apparent to Mungin that his fate was largely dependent upon two attorneys who had little or no commitment to furthering his career, and that his distance from the home office in Chicago isolated him from the firm's most important partners. Over a two-year period, none of the partners evinced much solicitude for him and a couple treated him with aggressive indifference. On one occasion he made a luncheon appointment with a partner at the Chicago office, only to be rudely stood up after having flown there from D.C. On top of these problems, demand for Mungin's specialty--bankruptcy work--suddenly plummeted. When the number of hours that Mungin billed to clients decreased, his superiors decided to respond by lowering the price of his services. This enabled him to keep busy. But it also lowered Mungin's standing within the firm, demoralized him, and forced him to pursue relatively simple tasks that were devoid of the analytic challenges that would impress his superiors when it came time for them to select a crop of partners from amongst the associates.
As his fortunes at the firm deteriorated, Mungin eventually made sense of his predicament by attributing it to racism--subtle racism, perhaps even unconscious racism, but racism nonetheless. Why else was he floundering? After all, he was hardworking and competent. Didn't it make sense, moreover, that he, the lone black attorney in the office, would fall victim to racial bias? The firm had a record of treating black attorneys in a fashion that drove them away. One, a black woman in the Chicago office, had already brought suit against KMZ. When she filed her complaint, Mungin stayed aloof from her, fearful that any support he might give would hurt his chances for partnership. Now, with his career heading toward ruin, he began to view her and other blacks who complained of racial discrimination with a newfound sympathy. He also began to keep notes on what he perceived as racial slights--the arrangement under which he was initially paid less money than other associates of his vintage, failures to invite him to important meetings, the manner in which a partner upbraided him for declining to do some work that she wanted done, patronizing compliments on his attire at the same time that he was deprived of work that would enable him to prove that he was partnership material, wrongful withholding of a raise, and then, finally, the decision to withhold his name from nomination for partnership. Demanding an explanation for this last blow, Mungin was told informally that he had simply fallen "between the cracks."
The cavalier way in which KMZ dealt with his cherished ambitions angered Mungin so much that he decided to sue the firm even if that meant effectively ending his career as a big-firm attorney. He felt that he had suffered something more terrible than unlawful racial discrimination. He felt that he had suffered betrayal. As Barrett puts it: "Mungin felt doubly burned at [KMZ]. He had defined himself largely in terms of professional success. The law firm crushed that self image by making him feel like a failure. Worse, he walked away feeling foolish that for his whole life, he had 'gone the extra mile to show people--whites and blacks, but mostly whites--that I wasn't one of those blacks, one of the dangerous ones, the bad ones. Or one of the complainers, the ones demanding special treatment.'"
Mungin sued KMZ, alleging that the firm, on a racial basis, had treated him less well than similarly situated white attorneys. A jury consisting of a white person and five blacks agreed and awarded him an astounding $2-million judgment--$1 million in compensatory damages, and $1 million in punitive damages--one of the largest awards of this type on record. The white judge who presided over the trial declined to reverse the jury's verdict. But a divided panel of the United States Court of Appeals nullified Mungin's victory. Chief judge Harry Edwards, a liberal Democratic black jurist (and former member of the Harvard Law School faculty) maintained that while part of the jury verdict was erroneous, its main finding of racial discrimination should be upheld. By contrast, two conservative Republican white judges, A. Raymond Randolph and Stephen F. Williams, J.D. '61, decided that no reasonable juror could have concluded on the basis of evidence presented at trial that KMZ racially discriminated against Mungin in terms of pay, work environment, or promotion.
The Good Black displays many virtues. for one thing, it offers a remarkably clear portrait of the vagaries of litigation. Barrett, who is deputy legal editor at the Wall Street Journal, renders technical legal issues thoroughly accessible to a lay audience, but also offers insights that lawyers will find instructive. Reading his vivid description of Mungin's lawsuit--the impact of the attorneys (particularly their weaknesses), the influence of the judges (particularly their biases), and the effect on the parties (particularly the burden on their own self-perceptions)--makes one understand a bit more fully what Judge Learned Hand meant when he once declared that he would "dread a lawsuit beyond almost anything short of sickness and of death."
Barrett's most outstanding virtue as an author, however, resides not in his technical legal expertise--which is considerable--but in his willingness and ability to grip and display the messy ambiguity of his subject. He takes positions with respect to the dispute he describes, but he is never tendentious in doing so. He scrupulously provides facts and perspective to readers that will allow them--on an informed basis--to reach conclusions other than those he adopts. He sympathetically portrays events from Mungin's vantage, showing why he sincerely perceived himself to be the victim of racial discrimination. But Barrett also shows that a reasonable observer could well conclude that Mungin's mistreatment, albeit deplorable, was not racial mistreatment, but instead a particular instance of KMZ's tendency to handle associates of all hues with appalling carelessness.
The one viewpoint on the case that Barrett treats harshly is that which was advanced by the court of appeals. In his view, that court "should have left the jury's discrimination verdict undisturbed"--not because the jury's verdict was necessarily correct, but because its verdict was not obviously and indisputably wrong, and was therefore deserving of deference, a deference that was perhaps lacking because of the court's own disturbing racial and political prejudices. In a brief but devastating rebuttal to the appeals court's majority opinion, Barrett shows quite persuasively that Judges Randolph and Williams overreached when they dismissed as "unreasonable" the jury's determination of disputed and ambiguous facts.
Barrett brings to his analysis of Mungin's travail a rather special, personal connection: he roomed with Larry Mungin during their first year at Harvard Law School and subsequently remained a distant but friendly acquaintance. He clearly sympathizes with Mungin and respects the pluck and discipline it took for him to take that long psychological journey from a fractured, working-class household in Queens to the daunting privilege of Harvard Yard.
At the same time, Barrett probes, often with excruciating directness, errors in judgment and flaws in character that helped to facilitate Mungin's sad downfall. Barrett reveals, for instance, Mungin's tendency to make crucial decisions without proper investigation and deliberation. Had he asked more questions about KMZ's policies and practices beforehand, Mungin might have been able to elicit answers that would have warned him away from the firm's unhealthy environment. At the very least, a few more questions would have enabled him to demand a higher salary. Barrett also reveals Mungin's striking selfishness, a flaw that reinforced the isolation that made him vulnerable to imprudent actions. A group of good, close friends might well have been able to save Mungin from his own penchant for rashness. Barrett observes, however, that "as an adult, [Mungin] felt friends were a luxury that he often couldn't afford. He didn't have time to nurture others, or to tend to their problems. He had enough on his mind. He became accustomed to flying solo....Eventually he found he couldn't break the habit."
Part case comment, part biography, The Good Black is also part snapshot of race relations at the end of the twentieth century. It pictures a reality that is simultaneously encouraging and disappointing. As Barrett notes, "progress in race relations made it possible for Mungin to rise from the ghetto to an enviable level of accomplishment....But his success made possible the relationships with whites that led to frustration at [KMZ]....Some blacks will see in Mungin's tale all the proof they need that white racism is increasing. Many whites will perceive in Mungin, and others like him in the black middle class, a tendency to embrace victimhood, a lack of gratitude for what they have. Each side's emotion fuels the other's resentment."