In the United States, law is historically one of the least diverse professions. Despite “The 2020 Diversity Scorecard” demonstrating some minimal progress in narrowing the equity gap, the legal community remains painfully segregated. In 2020, the American Bar Association (ABA) recorded over 1.3 million active attorneys practicing in the United States. Of those 1.3 million, the ABA reports 86% identify as non-Hispanic white (white). According to this same report, only 5% of practicing attorneys identify as Black. The Black community represents less than only 8% of law students.Comparing these statistics to the roughly 60% of the general U.S. population identifying as white and the approximately 13% of the general U.S. population identifying as Black demonstrates the legal community’s stark inequity in racial representation.
Compared to their white counterparts, Black, Indigenous, and people of color are disparately impacted by the criminal justice system, from pretrial to sentencing. People who identify as part of the Black community are alarmingly underrepresented within the legal community, yet they are grossly overrepresented as casualties of the criminal justice system. A major contributor to this disparity is the lack of diverse perspectives amongst the people who make the decisions to jail, prosecute, and sentence. This perpetuates the racial power imbalance on prominent display in our legal system.
Bruce Brown, former National Black Prosecutors Association president, offered a fix to the legal system’s inequities: erasing the vast gap between representation in the legal community. More Black people “in the room making decisions, challenging decisions” forces people who do not identify as Black to consider the motives behind the disparate results of the legal system. As Brown suggests, without first questioning these motives we cannot ensure our system is working “efficiently and fairly for everyone involved.”
Though we can and should readily admit the legal profession will benefit from increased Black representation, this is not a simple fix. Everything from the law school environment to the language and culture of the law intentionally excludes non white, non cisgender male perspectives. Dr. Tsedale M. Melaku, a sociologist and research fellow at CUNY, authored “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism” in response to the image most people have of a lawyer: white, male, able-bodied. This image, while reinforced by society’s inherent biases surrounding race and professionalism, is also based in the realities of the legal profession’s racial disparities. This gap in representation is the result of barriers that prevent diverse perspectives and voices from joining the legal profession. Law school application processes, experiences, and postgraduate licensing add additional barriers to the systemic burdens already imposed on the Black community.
The law school application process is not equitable. A major barrier for many Black students starting the process of applying to law schools is financial limitation. It costs the average student thousands of dollars to apply to law schools. For the median Black family that makes 61 cents compared to the median white family’s dollar, this cost is even more pronounced. Beyond costs, the qualifying standards of the legal community are historically shaped by white men of higher socioeconomic status and are thus meant to exclude those who do not share the same privilege. This is evident in the average results of the LSAT. The LSAT discriminates against Black test-takers and rewards the opportunities afforded to the majority of white people. Among other shortcomings, the test exaggerates prior educational disparities, discriminates against lower socioeconomic status, and asks biased questions. Nearly half of Black applicants are not accepted to any law school. This rate of rejection is higher than any other community.
These same problems with the application process extend into the law school experience. Due to disparities in socioeconomic status, Black law students are forced to take out more loans. On average, Black law graduates owe 97% more in loans than their white peers. Additionally, the substance of law school marginalizes students who do not share the narrow, privileged world-view of the white, male, property owners who shaped the history and doctrine of our legal system. This impact is intensified by the white overrepresentation and Black underrepresentation in law school—fewer Black voices means fewer perspectives challenging the status quo of our legal system and greater white indifference to the law’s undermining of diverse experiences.This feedback loop of white voices regurgitating white perspectives in the law can create an isolating environment for Black law students who are already, on average, at a socioeconomic disadvantage compared to their white colleagues.
Even after achieving a legal degree, there are still barriers in place before Black students become attorneys. Before even sitting for the bar exam, applicants must pass character and fitness standards. Part of this initial assessment is determining an applicant’s financial responsibility—this includes disclosing any defaulted debts. Some state bar exams require applicants to answer the specific status of their student loans. Even after a student is determined eligible to sit for the bar exam they face excessive expenses. Sitting for the bar punishes those without the socioeconomic security to take months off work to study or pay for additional preparatory classes.
The underlying causes of Black underrepresentation in the legal community, along with its potential remedies, is a topic too complex to fully cover in a Friday morning blog post. This post is a mere introduction meant to inspire and call upon future attorneys and legal scholars to engage with this issue. A greater amount of Black representation in the legal community will improve our system and decrease the significant disparities in application of criminal justice. More Black representation in the legal system, from start to finish, will help prevent discrimination, promote inclusiveness, and work to balance overwhelming white privilege. Before we can reap the benefits of equitable representation, we must begin the work of removing barriers implemented by a historically white system. Beyond affirmative action, which will alleviate the financial burdens forced on the Black community, we have to acknowledge that the legal education we are receiving was written by white people for white people. Once we have acknowledged this truth we can begin the process of reforming our system from the ground up as a system of equity and inclusivity.
– L. Moose