Excerpted From: Andrea A. Curcio and Alexis Martinez, Discipline Code Proceedings Another Example of Racial Disparities in Legal Education?, 22 University of Maryland Law Journal of Race, Religion, Gender and Class 1 (Spring, 2022) (209 Footnotes) (Full Document)


CurcioMartinezLegal education has a long history of embedding racism into our admissions and education processes, sometimes consciously, and other times by ignoring the history of the systems that have become the norm. While law schools have come a long way since the days of fighting court battles to shut the door to students of color, law schools continue to struggle with identifying and eradicating systems and processes that result in racial disparities and create an unwelcoming atmosphere for students of color.

Those processes exist from admissions through entry into the profession. For example, numerous scholars have examined the institutional and structural racism that underlies the seemingly “neutral” and “merit-based” assessment tools that limit diversity in law schools and the legal profession. As Professor Pamela Edwards notes, the LSAT, which originally was largely based on aptitude tests that had their foundation in racist and anti-immigrant sentiment, was created when law schools began to see more applications from people other than upper-class white men. For decades, scholars have questioned law schools' over-reliance on the LSAT in the context of its limited predictive value and its discriminatory impact. Likewise, scholars have long questioned the reliance on the traditional bar exam--a licensing method that often plays an outsize role in law school curriculum and teaching methods decisions. They argue it has little relationship to measuring minimum competence to practice law, and has a long-demonstrated significant disparate impact. Recent data-based studies about these issues with the bar exam have created momentum for changing how we license lawyers, demonstrating the impact data can have on long-entrenched systems.

To date, the focus of examining and eradicating structural, institutional, and interpersonal racism within legal education has largely focused on creating more diverse student bodies and faculty, integrating teaching about institutional and structural racism into the curriculum, and examining how faculty members' own biases affect how and what we teach. Some faculties have begun addressing other areas, such as interpersonal interactions inside and outside of the classroom that foster either a sense of belonging or alienation. These efforts are all necessary and laudable. However, if we truly want to address the institutional, structural, and interpersonal racism within legal education, we need to look beyond the classroom and employ a “whole systems” approach to identify and address areas where structural, institutional, and interpersonal racism impact the student experience.

The whole systems approach encourages schools to examine admissions practices, scholarship awards, access to graduate/research assistant positions, access to co-curricular activities, the funding and prestige awarded to co-curricular activities, and the myriad of law school policies and procedures that affect the culture and experiences of our students. To do that, we need to systematically review all the component pieces of legal education to identify problematic processes.

In this Article, we discuss one piece of that picture that has not been previously addressed: Honor and Disciplinary Code accusation, investigation, charging, adjudication, and sanction systems. We suggest that the devastating impact of even a Code violation accusation, let alone adjudication and sanctions, requires schools pay attention to these systems to fully understand whether systems we believe operate neutrally are, in fact, neutral. We also suggest, based on findings from K-12, undergraduate institutions, and bar disciplinary proceedings, that many law schools will likely find that disparities exist and will need to address those disparities if they want to create inclusive institutions that seek to ensure equity and fairness for all students.

Part I of this Article examines the potential psychological harm and educational and career altering effects of the disciplinary process. Part II reviews the studies from K-12, undergraduate institutions, and lawyer bar disciplinary proceedings that find disparities from initial reports through sanctions. It also reviews studies on the impact those disparities have on those charged. It notes that while disparate disciplinary reports and sanctions are the subject of intense study in K-12 and are beginning to be examined in undergraduate and bar disciplinary proceedings, most law schools have not addressed this issue. Part III discusses both why law schools should collect data and how it can be done in a cost-effective manner. It suggests that the ABA should include this data collection requirement as part of the work schools must already do to ensure compliance with Standard 206--the standard that requires law schools to demonstrate a commitment to inclusion and diversity. Finally, Part IV draws from work done in the K-12, undergraduate, and lawyer disciplinary contexts to discuss potential reasons for disparities that are likely as applicable in legal education as in these other arenas, and it suggests ways schools can begin addressing disparities they may find. The Article concludes by arguing that legal educators need demographic data collection about disciplinary code proceedings to move from a framework where we believe disparities, if they exist, are unintentional and thus we have no accountability, to a framework of collective accountability for institutional practices that systemically disadvantage particular groups.

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As law professors, we understand the need to acknowledge and educate future lawyers about how structural racism has impacted the justice system. This leadership role is particularly important today, when many state legislatures seek to limit how we educate tomorrow's leaders about structural racism and the need for inclusion. In addition to teaching our students about those issues, we must also look inward--at our own systems within our institutions. One step on that path is to gather data about Code violation reports and sanctions.

As part of a whole-systems approach to addressing potentially racist systems within legal education, law schools cannot turn a blind eye to disparities in disciplinary reports, adjudication, and sanctions data we see elsewhere. We cannot assume that our lack of data also means a lack of disparities. Instead, law schools, and the ABA Council on Legal Education, should take the lead and systematically collect data about our Code proceedings.

Only when we have the data, and transparency about the data, can we have accountability and move forward in our quest to create more equitable institutions. Data collection like that suggested in this Article moves us from a framework where we believe disparities, if they exist, are unintentional, and thus relinquish any accountability, to a new framework of collective accountability for institutional practices that may systemically disadvantage particular groups.

Andrea A. Curcio is a Professor at Georgia State University College of Law.

Dr. Alexis Martinez is the Executive Director of Equity and Compliance Programs at Georgia Institute of Technology.