To an outside observer, the legal profession may seem to be improving its historic diversity problem. Many nationally recognized figures, including our President, the First Lady, and the Attorney General, are minority and/or female attorneys. Nonetheless, the legal profession remains one of the least diverse career fields. A shocking 88 percent of all lawyers are White.
One of the reasons this disproportional representation of minorities exists, occurs before the minority student even applies to a law school. The Law School Admission Test (LSAT) is something all aspiring law students must take in order to apply to the law school of their choice. The test consists of five 35-minute sections of multiple-choice questions. In the 2011-2012 testing year, the mean score for minority test takers was lower than that of White test takers. The mean scores were: Puerto Rican- 138.05, Other Hispanic/Latino- 146.32, African American- 141.84, and White- 152.8. Generally, the LSAT is a challenging test. However, the section that most complain about is the “Logic Games” section. In order to improve their scores on this section, and in the exam in general, many resort to LSAT prep courses, supplements, and private tutors.
Generally, these high costs affect and limit minority students more than white students.
According to The Atlantic, “The Logic Games section is extremely visual. To do well in this section, you need to draw diagrams and charts. It is difficult to master these techniques by simply reading about them in a book. It is much easier to watch someone actually draw the questions out and coach you as you work through them. A student can get that kind of individual attention either from a class or a tutor.” The most popular online and in-person courses cost between $950 and $1,600, but many will need more private tutoring, which could cost more. Generally, these high costs affect and limit minority students more than White students. This is reinforced by the fact that most minority students are already in more student loan debt than their White peers by the time they graduate from undergraduate institutions.
Once a law student graduates and passes the bar exam, their job selection can be heavily influenced by the average law student loan debt exceeding $150,000. For many minorities this extremely high amount of debt often dictates where they choose to work because unlike the majority of their White peers, they cannot depend on their parents for financial help. This financial insecurity often pushes away minority students from public interest law or government jobs, which tend to pay less than private practice positions. This results in an even less diverse workforce in areas of law where the majority of clients are minorities. An example of the negative effects this lack of diversity can cause is seen in criminal law.
At the local level, America’s justice system is disproportionately White-controlled…
Gordon Weekes, a Chief Assistant Public Defender in Florida, states, “Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney. They decide what charges to file, or more importantly, what charges not to file.” Fusion reports that, of the almost 2,500 elected prosecutors in the U.S. (at both the federal and county levels), 79% were White men, even though they made up only 31% of the population. The report continues to show that, as a whole, 93% of all prosecutors in the United States are White, though only 61% of the U.S. population is. At the same time, Black men are in state or federal facilities 3.8 to 10.5 times more often than White men. This data reinforces what activists have argued for so long. America’s justice system is disproportionately White-controlled, and disproportionately punishing minorities.
When looking at the statistical breakdown, Fusion provides, the disparities are even more obvious:
“In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color. In counties where people of color represent between 80% and 90% of the population, only 53% of the prosecutors are prosecutors of color. Only in places where 90% or more of the population is people of color does the prosecutor pool reflect the diversity of the community. Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42% of the prosecutors in these counties are prosecutors of color. Existing data shows Black prisoners are punished more harshly than White prisoners across America. In 2008 and 2009, the average length of a federal prison sentence for Black males was 90 months, compared with 55 months for a White male. Many variables play a role, but according to a 2014 study an unexplained black-white sentence disparity of approximately 9% remains, even after accounting for factors such as prior convictions.”
Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. Robinson believes the problem is that to get elected, they usually position themselves as “tough on crime.” Robinson continues to tell Fusion that, “They’re going into the job trying to get high conviction rates. They try to rack up as many convictions as possible, even though we a have mass incarceration problem. What we really need, is progressive prosecutors of any race who realize that the prison-industrial complex has not made us safer.”
Melba Pearson, a past president of the National Black Prosecutors Association (NBPA), is an assistant state attorney in Miami. Pearson explains to Fusion that she didn’t realize how powerful the role of a prosecutor was until she became one. She explains, “The prosecutor in our criminal justice system is the one person who holds all the cards. While the judge can adjudicate a part of the outcome, everyone in the courtroom is bound by the decision of the prosecutor choosing to file. I understand more than I did the importance of being a female prosecutor of color. I’ve embraced the role more so. It’s not just about doing justice and seeking justice for victims, but also bringing awareness of my role to a section of the population that has been historically underserved.” In her interview with Fusion, Pearson laughed off criticisms that minority prosecutors exercising judicial empathy translates to leniency for criminals. “I specialize in robberies and homicides, so I can’t turn a blind eye. You put a gun in someone’s face, I can’t, because of the history of slavery and Jim Crow, ignore that. No, no, it doesn’t work that way!” Rather, she said, the reasoning is, “Can I make you a little better? You will be punished, but what can I do to deter you?”
An example of this racial disparity also exists in Bankruptcy law. In the study, “Race, Attorney Influence, and Bankruptcy Chapter Choice,” researchers found that even after controlling for financial, demographic, and other factors, lawyers, in part because of biases, were disproportionately guiding African Americans into Chapter 13 (the more onerous and costly form of consumer bankruptcy). Attorneys recommend Chapter 13 to Black clients twice as often as they do White clients, even when clients prefer the less onerous Chapter 7. The researchers also found that bankruptcy attorneys were more likely to recommend Chapter 13 to the hypothetical debtors named “Reggie and Latisha” than to “Todd and Allison.” While “Todd and Allison” were perceived as having better values and being more competent when they wanted to file Chapter 7, giving them a “fresh start,” “Reggie and Latisha” were credited with such values only when they expressed a preference for Chapter 13. As a consequence of such biases, African Americans have the highest rates of Chapter 13 filings.
The lack of diversity in the legal profession not only has a negative impact on the profession, but more importantly, it also affects those people whose lives attorneys hold in their hands
The lack of diversity in the legal profession not only has a negative impact on the profession, but more importantly, it also affects those people whose lives attorneys hold in their hands. Another issue that is affecting minority attorneys, is their ability to become part of the leadership in their firms. Although African Americans, Latinos, Asian Americans and Native Americans now constitute about a third of the population and a fifth of law school graduates, they make up fewer than 7% of law firm partners and 9% of general counsels of large corporations. In major law firms, only 3% of associates and less than 2% of partners are African Americans. This is in part due to biases whether implicit or not, that still exist. Minorities still lack the presumption of competence granted to White male counterparts, as illustrated in a recent study by a consulting firm. It gave a legal memo to law firm partners for “writing analysis” and told half the partners that the author was African American. The other half were told that that the writer was White. The partners gave the White man’s memo a rating of 4.1 on a scale of 5, while the African American’s memo got a 3.2. The White man received praise for his potential and analytical skills; the African American was said to be average at best and in need of “lots of work.”
This can cause women and minorities to not advocate for other women and minorities once they reach positions of power.
For the few that that do make it to an executive level, it is difficult and sometimes even professionally dangerous, to advocate for diversity. In a recent study, women and nonwhite corporate executives who promoted diversity were given “much worse” competence and performance ratings than their counterparts who didn’t promote diversity. According to the study, White men are a “high status group whose competence is assumed and so they can deviate from the status quo.” Meaning, White men can adopt a diversity-promoting agenda without anyone questioning it. Diverse executives, however, belong to a “low-status group, so when they advocate for other members of their group, they activate “the stereotype of incompetence,” and it leads to worse performance ratings.” This can cause women and minorities to not advocate for other women and minorities once they reach positions of power. In a The American Lawyer article, an Am Law 100 Diversity Director stated, “I get why junior minority partners aren’t reaching down to minority associates. I used to be mad at them, but not anymore, because it doesn’t work anyway.” This director also says that firms deploy diversity directors as window dressing. “This shouldn’t be a role where only Black women get hired.”
So what are some possible solutions? It begins at the law school level. In a Bloomberg Law article, Law Professor Deborah Jones Merritt proposes a variety of possible solutions, including lowering tuition, which would help less affluent minorities afford law school; awarding scholarships based on need, rather than LSAT scores; and help professors recognize the implicit bias that can affect their interactions with minority students. Professor Merritt goes on to say,
“We don’t need to rely upon high-cost, low-performing law schools to give minority students an ‘opportunity’ to pass the bar and become lawyers. We could do a much better job supporting minority students throughout legal education. Many of us have become complacent about racial and ethnic diversity at our law schools. The best way to further diversify the legal profession is to attack these problems at every school, not to nurture a false hope that minority students will succeed by paying top dollar to attend law schools with low bar-passage rates. If every law school eased the financial burden on minority students, while also working to support those students’ highest aspirations in the classroom, we would enhance the success of our minority graduates.”
Professor Merritt then concludes by asking the most important question law schools should be asking themselves. “How many of our own practices are we willing to change to promote greater diversity in the legal profession? That is the true test of our commitment to diversity.”
On the law firm side, firms have to make an effort to approach this issue as a whole rather than, having just a small committee. As Professor Deborah L. Rhode says, “To make all these reforms possible, they must not be seen as ‘women’ or ‘minority’ issues, but as organizational priorities in which everyone has a stake. The challenge is to create that sense of unity and to translate rhetorical commitments into daily practices.”
Although there is no one solution to this lack of inclusivity in the legal profession, it must first at least be acknowledged as a problem. From that point, law schools and firms can begin to figure out how to resolve this problem. Not only will this help the legal profession, but more importantly, it will benefit those that depend on it.