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Floyd Weatherspoon

Permission Requested: Floyd Weatherspoon, The Status of African American Males in the Legal Profession: A Pipeline of Institutional Roadblocks and Barriers , 80 Mississippi Law Journal 259 (Fall, 2010)

 

Very few African American males complete the long and daunting journey to enter and advance in the legal profession. It is a journey with institutional roadblocks and barriers that prohibit their entrance and advancement as lawyers. The number of African American males entering the legal profession remains stagnant, with only marginal increases during the past fifteen years. Even though the U.S. Supreme Court declared the intentional exclusion of African American males from state law schools unconstitutional more than fifty years ago, other neutral institutional policies and requirements have stifled the growth and development of African American males attending law school and advancing in the legal profession. Even with these legal victories, African American males still confront institutional practices that exclude them from entering the legal profession.

Many law schools have developed aggressive recruitment programs to attract African American males to attend law school. Law schools have also developed academic support programs for those students who attend. These efforts, however, have only minimally ameliorated the barriers that African American males face in their pursuit of careers in the legal profession.And even prior to law school, the roadblocks and obstacles along the pipelines to the legal profession prevent many African American males from becoming attorneys. One misstep on the pipelines can derail a student's dream of becoming an attorney. African American males who advance along the pipelines often face insurmountable educational stumbling blocks: a criminal justice system that incarcerates mass numbers of young African American males, law school institutional barriers, racial isolation while in law school, lack of role models in the legal profession, and draconian testing and admission policies. Even African American males who graduate from law school may face insidious discriminatory hiring practices, particularly in the private sector. These factors, plus others, negatively impact the pool of young African American male students who could have successful legal careers as attorneys in private practice, prosecutors, public defenders, judges, or law professors.

African American males play a major role in our American legal system not as lawyers, judges, or prosecutors, but as defendants in criminal proceedings. Indeed, on any given day and almost in any criminal court or juvenile justice system, African American males will be defendants, represented by a court appointed white attorney, prosecuted by a white prosecutor, sentenced by a white judge, and ultimately incarcerated and guarded by white prison guards. Incarceration, not education, is the pipeline that far too many young African American males disproportionately travel. The absence of African American males in the legal profession creates a climate of hostility and a lack of trust toward the American justice system, which prosecutes and incarcerates mass numbers of African American males. Moreover, a number of studies concluded that the court system treats African Americans differently: bail-setting is higher for African Americans than white defendants, African Americans receive longer sentences than whites who commit similar crimes, and African Americans are more likely to be sentenced to death when the victim is white. Thus, the current state of African American males in the criminal justice system may negatively affect the motivation of many young African American males to pursue a career in the legal profession.

In 2004, the American Bar Association's Commission on Racial and Ethnic Diversity in the Legal Profession (ABA) completed a broad and comprehensive review of minorities in the legal profession. The ABA entitled the study, Miles to Go: Progress of Minorities in the Legal Profession. The study reviewed data on minorities in the profession to determine the profession's progress toward full and equal racial integration. The study concluded that minorities face major obstacles to enter into and advance in the legal profession. In 2005, the ABA held a national conference to explore ways that the pipeline to the legal profession could be expanded to ensure diversity. The ABA issued a post-conference report entitled, Embracing the Opportunities for Increasing Diversity Into the Legal Profession: Collaborating to Expand the Pipeline, which summarized the range of strategies and solutions for enhancing diversity in the legal profession.

Local and state bar associations, law firms, the ABA, and many other organizations committed to increasing diversity in the legal profession have implemented many of these strategies and programs. Unfortunately, the pipelines for African American male students fail to lead directly to law school and into the legal profession.

Except for the ABA reports, very few studies and reports conducted on the status of African American males in the legal profession separated them from other minority groups. Moreover, studies often combine the data on African American males in the legal profession with African American females. By reporting on the status of African American men with African American women and other minorities, many studies have overlooked the fact that little progress has been made to increase the number of African American males in the legal profession. The reasons for the absence of African American males in the legal profession are often the same as with other groups, but African American males also face a number of unique obstacles and barriers. Therefore, this article focuses specificallyon the status and plight of African American males in the legal profession.

Representing a rich tradition, African American male lawyers successfully advocated for the end of segregation of law schools and for the admittance of African American students to white law schools. Section II of this article provides a summary of these historical civil rights cases that slowly opened the pipelines for African American male students to attend segregated white law schools. Section III describes the present status of African American males in the legal profession. Section IV explores the underlying reasons for the declining enrollment of African American males into law school and ultimately the legal profession. Section V provides a brief overview of efforts being made to address these issues and suggests new approaches to enhancing the flow of African American males along the pipelines to the legal profession.


I. A HISTORY OF DISCRIMINATORY AND EXCLUSIONARY ADMISSION PRACTICES BY LAW SCHOOLS

There has been a lengthy history of racial exclusionary practices, which prohibited the admission of African American students, particularly males, into white public law schools. Charles Hamilton Houston and Thurgood Marshall, two African American male lawyers, led the fight for the admission of African Americans into white law schools through their brilliantadvocacy. One of their first cases, Pearson v. Murray, challenged the practice of excluding African Americans from attending the University of Maryland Law School. Murray, an African American male, alleged that he was denied admission because of his race. The court of appeals held that while the separation of races was permissible, equal treatment was still required. Thus, requiring African American law students to travel out of state to attend law school violated the Equal Protection Clause of the Fourteenth Amendment. The court required the University to admit Murray since there were no separate law schools for African Americans in the state of Maryland.

In 1938, Lloyd Gaines, an African American male, challenged the University of Missouri's policy of excluding African Americans from admission to law school. In Gaines v. Canada, Gaines alleged that his denial of admission because of his race violated the Equal Protection Clause of the U.S. Constitution. Even though Gaines met the qualifications for admission to the law school, the University nevertheless denied his admission purely because he was an African American. He was directed to apply for state aid to attend a law school in another state that admitted African Americans.

The U.S. Supreme Court held that if the state provided higher education to white residents, it had to provide higher educational opportunities to black residents within the state, but not necessarily in the same school. Gaines opened the pipelines for African American students to receive legal training within the state, although it would be segregated. The Gaines decision did not overrule Plessy v. Ferguson, which upheld the separate but equal doctrine.

Twelve years after the Gaines decision, the U.S. Supreme Court was again confronted with the issue of whether the exclusion of an African American male from a state supported law school because of race violated the Equal Protection Clause of the Constitution. In Sweatt v. Painter, an African American male applied and was denied admission to the University of Texas Law School. Sweatt alleged that the white law school had substantially more resources than the separate law school established for blacks. The U.S. Supreme Court agreed with Sweatt and ordered his admission to the white law school. The Court held that Sweatt had been denied privileges, advantages and opportunity to study law in comparison to white law students. Again, the Supreme Court refused to re-examine the separate but equal doctrine it first articulated in Plessy. Even with the Court maintaining the doctrine of separate but equal, the Sweatt decision further opened the pipelines for African American students to attend white law schools.

In 1954 the U. S. Supreme Court issued the seminal case Brown v. Board of Education, which held that the separate but equal doctrine in segregated public schools violated the Equal Protection Clause under the Fourteenth Amendment. Specifically, the Court stated that the doctrine of separate but equal has no place in public education. The Court also indicated that [t]oday, education is perhaps the most important function of state and local governments. The ending of the separate but equal doctrine and the Court's confirmation of the importance of education further opened the pipelines for African American students to apply to and attend state supported law schools, which had previously refused to admit African American students. The Brown decision, however, failed to have a major impact on the admission of African American students into white law schools. Without a doubt, the number of African American students increased as a result of widespread integration, but the number of African American male lawyers remains considerably low in comparison to the total population of African Americans. Ironically, the Brown decision led to the unintended result of the closure of many black law schools that enrolled African American males. Although black law schools served their purpose during the period governed by the separate but equal doctrine, the end of de jure discrimination undercut the need for black law schools because African American students could now attend integrated law schools. Consequently, the Brown decision also allowed for the mass closure and consolidation of black and white schools, especially in the South.

Almost fifty years after the decision in Brown, the U.S. Supreme Court issued the highly divided decision of Grutter v. Bollinger. In Grutter, the University of Michigan Law School used race, among other factors, in making admission decisions for entrance into the law school. The law school's admission policy sought to ensure diversity among its students. The Supreme Court held that the University of Michigan's program was narrowly tailored and furthered a compelling state interest in obtaining the educational benefits that flow from a diverse student body. Even though the Grutter decision was a victory for proponents of affirmative action, the decision did not prevent a decline in enrollment of African American students.

Nevertheless, the Grutter decision in theory prevented a fragile pipeline for African American males to be admitted into law school from narrowing. However, after more than seventy years of state and federal litigation involving admission policies, the number of African American males attending law school and entering the legal profession remains low and continues to stagnate.


II. PRESENT STATUS OF AFRICAN AMERICAN MALES IN THE LEGAL PROFESSION

A. The Stagnant Number of African American Male Lawyers

African Americans represent approximately 12% of the U.S. population, and 6% of the U.S. population are African American males. In terms of actual numbers, the 2000 Census reported that there are 33,865 African American lawyers, 17,450 of whom are male, out of more than 800,000 lawyers. A 2007 survey of employed civilians by occupation conducted by the U.S. Census indicated that African Americans represent 4.9% of the total lawyers in this country.

The Law School Admission Council (LSAC) reported that [o]nly 1 in 25 lawyers is African American, Latino, Asian American, or Native American. These numbers clearly illustrate that minority groups are severely under-represented in the legal profession. African American males, in particular, are among the most under-represented groups. Based on the 2000 Census, African Americans represent 3.9% of lawyers in the country, of whom 2.0% are African American males. Even though there has been some increase in the number of African American male lawyers during the past forty years, the increase has only been marginal. One study of census data reported that in 1960, 2.0% of male lawyers and judges ages 36-45 were African Americans. After several decades of litigation, affirmative action, and various initiatives, in 2000 the proportion in the same group has grown only modestly to 2.8% of male lawyers.

B. Few African American Male Prosecutors

Very few African American lawyers are employed as prosecutors, and those who are only remain in their positions for a short period of time. A typical prosecutor's office employs primarily young white male attorneys. According to a recent study, African Americans represent 8% of all federal prosecutors--a disproportionately low number compared to the 13% of African Americans in the general population.

There are few African Americans who advance through this pipeline to jobs in the most powerful public law office. There are a number of reasons why few African American lawyers work for prosecutors. One reason is that African American lawyers see first-hand the injustices of the criminal justice system. It is a system where prosecutors disproportionately prosecute young African American males. Day after day prosecutors in the juvenile justice system and in state and federal court systems charge and prosecute young African American males. Prosecutors disproportionately seek the death penalty for African American males in capital crimes, use peremptory challenges to exclude African American males from serving on juries, and target African American communities for strict enforcement of gun laws.

Further, prosecutors exercise unbridled discretion in determining who will be criminally charged, prosecuted, or offered a plea bargain. Unfortunately, there may be times when prosecutors' unbridled discretion negatively impacts African American males. Even when prosecutors engage in misconduct during judicial proceedings, they are immune from law suits. Proving that prosecutors have engaged in selective enforcement of the laws based on race is almost impossible because of the standards established by the Supreme Court. These may be factors that cause young African American male lawyers to shy away from working in an environment where they must prosecute mass numbers of young African American males and engage in possible discriminatory conduct.

C. Few Judges, Magistrates, and Other Judicial Workers

Over the past several decades, few African American males progressed through the pipelines to become judges. Those who administer justice in this country are primarily white males. White males and females represent approximately 83% of judges, magistrates, and other judicial workers. According to the 2000 census, African American males represented 3.9% of judges, magistrates, and other judicial workers. The number of African American male judges in some states was slightly higher than the national figures, but still disproportionately lower than other groups. Appointing African Americans to the federal bench may be more challenging than appointing white males. A study of the 1980-2000 census data on African American lawyers ages 31-65 reports that African American male judges increased from 3.8% to 5.1%. Even though there appears to be a modest increase in African American male judges, the numbers may be misleading because the ABA study includes other judicial personnel, which may inflate the numbers reported for African American male judges.

D. Lack of Diversity in Major Law Firms

A study on diversity in law firms by the U.S. Equal Employment Commission revealed that since 1975, the percentage of African Americans working in large law firms increased from 2.3% to 4.4%. The study also revealed that African Americans employed as associates have lower odds of being promoted to partner. While recently firms implemented a number of initiatives to hire and promote African American lawyers, the overall numbers have increased only marginally. A study of census data from 1980-2000 concluded that the employment of African American male lawyers by private law firms and companies only increased from 1.8% to 2.1%. Moreover, few African American males moved through the law firm pipelines from associate positions to obtain lucrative partnership positions. The National Association for Law Placement (NALP) reports that in 2009, of the approximately 1,500 law offices and firms reporting, African American males represent 1.8% of associate positions and 1.2% of partners in major law firms.

Minority males who gain access to positions in major law firms leave those positions in a shorter period of time than similarly situated white males. The NALP also reports that--compared to 21.6% of all men--29.6% of minority male associates departed their employment within 28 months; 68% of minority men departed within 55 months of their start date as opposed to 52.3% of men overall.

E. Few Opportunities as Judicial Law Clerks

From 1992 to 2000, the numbers of African American male judicial clerks remained relatively low in both federal and state courts. From 1993 to 2007, no more than 6.6% of judicial clerks reporting to NALP were African American. Moreover, from 1992-2009, the number of African American males who served as judicial clerks ranged from a 2009 low of 1% to 2.1% of all clerks.

Few African American male law graduates have clerked for judges according to a recent study, and the resulting disconnect diminishes the opportunity for African Americans to exert unspoken influence on judicial decision-making. Judicial clerkships in state and federal courts and with the U.S. Supreme Court are some of the most prestigious positions in the legal profession. Often, employers recruit former judicial clerks for positions as law professors, associates in major law firms, and judicial appointees. When selecting judicial clerks, judges often consider whether the applicant served on law review, the reputation of the law school the applicant attended, and the applicant's personality. Consideration of these factors may have a disparate impact on African American male graduates. In 2002, the federal courts developed a hiring plan for applicants to follow in applying for a federal judicial clerkship.There is little evidence that the court's hiring procedure has resulted in an increase in the number of African Americans hired as judicial clerks.

In the 1990s, the issue of lack of diversity among the U.S Supreme Court's law clerks received national attention. A little over a decade later, there has only been a marginal improvement in the hiring of African American judicial clerks. The U.S. Supreme Court employs approximately eighteen law clerks each year. The pipelines for African American law graduates rarely lead to these types of positions. White male law graduates are primarily groomed and selected for these positions. Since 1998 between zero and nine minority clerks served in any given year, and in 2009, Justice Thomas indicated that African Americans and Hispanics are the two most difficult minority groups to retain as clerks.

F. Few African American Male Law Professors

The American Association of Law Schools (AALS) reported that during the 2007-2008 school year, only 348 of 10,780 professors were African American males. Moreover, the number of African American males listed on the AALS register of applicants to be considered for a professor position was only 35 or 6.2% of all the applicants. These numbers reveal that very few African American male lawyers are considered or selected into this exclusive club of law professors.

The pipeline to the position of law professor normally flows from an Ivy League law school through a position as an associate at a major law firm or as a judicial clerk, or both. Since large law firms and courts employ few African American males, the current legal employment market diminishes the opportunity for African American male attorneys to be hired as full time tenured professors.

African American men hired as law professors face challenges with retention, promotion, and tenure. A study of newly hired law professors during the 1990-1991 school year tracked their status seven years later, revealing that schools more often than not retained, promoted, and offered tenure to fewer African American male law professors than to other groups. The study shows the extreme difficulty confronted by African American males who seek to obtain and maintain tenure track law professor positions.


III. WHY ARE AFRICAN AMERICAN MALES UNDER-REPRESENTED IN THE LEGAL PROFESSION?

A. The Failure of the Public Education System to Educate African American Males

The educational pipelines that flow from elementary school through professional school contain insurmountable barriers and obstacles for African American males. Numerous factorsdisrupt the educational pipelines in elementary school for far too many African American males. At this early age, negative educational experiences suppress their interest in school and their desire to excel academically. Beginning in elementary school, educators often disproportionately place African American males in special education programs.

Middle schools and high schools disproportionately suspend and expel African American males and refer them to the juvenile justice system. Once in the juvenile justice systems, the pipelines to college are permanently derailed. For example, African American males who fail to complete high school are 3.1 times more likely than high school graduates to become incarcerated and 7.8 times more likely than college graduates.

African American males are disproportionately suspended and expelled from school and placed in special education classes. They are absent in pre-college and advanced classes. Their grade point averages are lower than white students',and they score lower on educational achievement tests.

Numerous sources study and report the under-class status of African American males in public schools, yet significant institutional improvement remains notoriously absent. The studies suggest that a number of life and social factors impact educationally successful African American males. There have been isolated and sporadic successes from a few school districts. Often, many other African American males will succumb to these pressures and will take a permanent detour from all educational systems. Many school districts have failed to develop a comprehensive plan to motivate and encourage African American males to remain and excel in school.

African American males drop out of school at a higher rate than any other group. Some school districts report that the dropout rate exceeds 50%. This also negatively impacts their graduation rates. The national graduation rate for African American males during the 2003-2004 school year was 45%. Indeed, many of the country's largest school districts report that the graduation rate for African Americans is below 50%. The U.S. Census Bureau also reports that only 12% of white males twenty-five and over earned less than a high school education compared to 22% of African American males.

Reading is the foundation for academic achievement. Reading skills are at the basic core of the pipelines that lead to college and to law school. Consequently, the legal profession requires a high level of reading comprehension. However, African American males test disproportionately below the national reading standard. For example, the National Assessment of Educational Progress reported that in 2007, African American males taking the eighth grade reading assessment averaged a score of 238 while white males averaged 267; African American males scored lower than all other racial groups. Additionally, the College Board reported that in 2009 African American male high school seniors achieved a mean score of 426 in critical reading while white males scored a mean of 530. These scores are used by colleges and universities to evaluate a student's application for admission.

The deplorable status of African American males in public schools directly correlates to their admission and success in college and ultimately law school. Unless there are dramatic institutional changes in public school systems, unresolved problems will clog the legal education pipelines and inhibit the growth and development of African Americans who aspire to enter the legal profession.

B. The Mass Incarceration of Young African American Males

There are more African American males in jail and prison than in college. The U.S. Justice Department reports that in 2005 approximately 8% of African American males in their late twenties were in prison. Federal and state jails and prisons currently hold more than 500,000 African American males. The U.S. Justice Department projects 32% of African American males born in 2001 will serve some time in prison during their lifetime. A study by the PEW Center reports that [w]hile one in 30 men between the ages of 20 and 34 is behind bars, for black males in that age group the figure is one in nine.

What a waste of talent! These statistics show the collateral effect that mass incarceration has on African American males. How ironic that America incarcerates enough individuals to be ranked near the top in that category. The mass incarceration of African American males is similar to the mass number of African American males enslaved during the height of slavery. The National Center for Education Statistics reports that approximately 1,000 African American males and 18,000 white males graduated from law school during the 2005-2006 school year. Individuals who could have pursued legal careers and graduated from law schools instead look out from behind bars because they are among the 500,000 incarcerated African American males.

Once released from prison or jail, African American males face a number of hurdles if they choose to return to the educational pipelines. Often they leave the correctional system with major educational deficiencies and no high school diploma or General Education Diploma (GED). Moreover, they lack skills to find meaningful employment while pursuing their GED or a college degree.

Normally, they leave prison with a felony on their record that limits their employability. If they were convicted of a drug offense, they may be denied federal grants or loans to attend college. The combination of education deficiencies, restricted educational funds, criminal records, and a lack of employment opportunities permanently disconnects African American males from the pipelines to college and law school.

C. Low College Enrollment and Graduations Rates For African American Males

Numerous sources show the dearth of African American males seeking a college education. In 2000, 62% of African American females enrolled in colleges and universities, while only 37% of African American males followed suit. The number of bachelor's degrees awarded to African American students continues to increase, but at a snail's pace. The U.S. Census Bureau reports that from 1990 to 2006, the percentage of African Americans receiving bachelor's degrees increased from 5.8% to 9.6%. However, the U.S. Census also reports that only 16% of African American males over twenty-five years old have a bachelor's degree. In some urban areas where there is a higher population of African American males, even fewer have a high school diploma, resulting in an even further reductionin the percentage of those going on to college to obtain a bachelor's degree.

According to the American Council on Education, in 2003 more than one million African American women were enrolled in college; whereas, approximately 700,000 African American males were in college. Even at historically black colleges, African American women are enrolled in substantially higher numbers than African American males. Similarly, African American women significantly outnumbered African American men in attendance at the nation's thirty highest ranking colleges and universities. At some of the schools, African American women represented more than 60% of the black students. The study also stated:

[B]lack women hold a large lead over black men in almost every facet of higher education. Black women currently earn about two thirds of all African-American bachelor's degree awards, 70 percent of all master's degrees, and more than 60 percent of all doctorates. Black women also hold a majority of all African American enrollments in law, medical, and dental schools.

The pipelines to and from college continue to narrow considerably for African American male students. There are a number of barriers that African American males face in attending college. Among those barriers include a lack of motivation to attend college and an understanding of the value of obtaining a college education. A lack of mentors, parental support, and financial resources also contribute to the relatively low enrollment of African American males in college. Unless the number of African American males enrolled in college increases substantially, the number of African American males attending law school will likely decline or remain stagnant.

D. Admission Into Law School: Declining Number of African American Males

The enrollment of African American students in law schools has been stagnant with only marginal increases during the past fifteen years. The number of African American applicants to law school declined for three consecutive years: 2005, 2006, and 2007. In 2006, there was a major drop of African American applicants to law school: 6.6%. American law schools typically admit around 3,500 African Americans to law school every year or 7.25% of all first-year J.D. students. Regarding the total number of students enrolled, during the 2008-2009 school year, there was a modest increase in African American students, from 9,483 to 9,822. And between 1993 and 2010, LSAC reported that the number of African Americans enrolled in law school oscillated from 9,100 to 10,100 each academic year.

The enrollment of African American students recently declined at a number of highly ranked law schools. The admission pipelines to historically black law schools may also be diminishing. This occurred in part because an increasing number of white students denied admission to traditionally white law schools gained admission to historically black law schools. The influx of white students at historically black law schools may adversely impact the admission of African American males at those institutions. Interestingly, states established some black law schools to maintain segregation between the races, but now these laws schools are considerably more integrated than white law schools. The once permanent pipeline of African American males from black law schools to the legal profession continues to vanish. African American males may be negatively impacted as the mission, role, and the make-up of the student body at historically black law schools continues to change.

Fewer African American males enroll in law school compared to African American females. For example, a survey of African American students at Harvard Law School reports that between 66% and 70% of black students are women. Other elite law schools enroll a similarly small amount of African American males.

Historically, the admission process used by law schools adversely affected the number of African American students admitted to law school, while consideration of affirmative action factors drove the modest increase in racial diversity. During the 1980s, law schools implemented affirmative action programs to recruit and admit minority students. After a number of anti-state affirmative action propositions, public criticisms, court decisions, and laws outlawing affirmative action, many law schools have retreated from, if not totally dismantled, their affirmative action programs. Not even the decision by the Supreme Court in Grutter v. Bollinger supporting the University of Michigan's claim that diversity in law schools constituted a compelling governmental interest rejuvenated affirmative action programs in law schools.

The ranking of law schools by U.S. News & World Report magazine has resulted in many law schools giving greater consideration to standardized test scores. An official from LSAC, which administers the test, stated that, [c]olleges overemphasize test scores in admissions decisions because they can easily be quantified, and because higher LSAT scores make schools look better to those who try to rank America's law schools, like U.S. News & World Report magazine. The higher the LSAT scores, the higher the ranking for the law school. The increased reliance on the LSAT to the detriment of other factors further lessens the opportunity for African American males to be admitted into law school. There is also criticism that the misuse of the LSAT is racially biased toward minorities, but those criticisms tend to be ignored by many law schools. One or more of these practices by law schools, though facially neutral, may negatively impact an individual's law school admission.

African American applicants to law school tend to have lower LSAT scores and grade point averages than white applicants. The average LSAT score for African American students is 142, whereas the average score for white students is 152. The mean LSAT score for African American males remained relatively constant at 142 during the years 1995-2002. Lack of preparation and test anxiety, among other factors, may cause minorities to have low scores. Lower grade point averages between African American students and white students may also impact LSAT scores. The average grade point average (GPA) for African American students is 2.74, whereas white students average 2.9.

Lower LSAT scores of African American males may also be caused in part by the failure of the public education system to provide educational resources and instructions on taking standardized exams. If the public education system disproportionately excludes African American males from advanced high school and college courses throughout their educational experience, they will be negatively impacted when faced with the grueling LSAT exam.

E. Completion of Law School: Lowering the Attrition Rates of African American Males

Admission into law school does not guarantee completion. The rigor of law school causes the attrition of law students, and some law schools weed out students during the first year based on the student's failure to maintain a certain GPA. Consequently, law schools may disproportionately dismiss African American students.

To address the attrition problem generally, law schools now require or highly recommend that students participate in school-sponsored academic success programs to assist those who enter law school with slightly lower grade point averages or LSAT scores. The academic success program is designed to enhance the academic status of participants. It has been determined that these programs have been successful in lowering the attrition rate of African American students, especially those who may have entered law school with a lower LSAT score than other students admitted.

Law students may also withdraw from law school because of a lack of financial aid, family obligations, and a feeling of isolation. If students feel isolated or labeled, they may drop out of law school. The matriculation rate for African American students has been primarily stagnant. During 1998-1999, approximately 2,800 African American students graduated from law school, representing approximately 7% of the year's law school graduates. When coupled with higher attrition rates, these numbers demonstrate the depth of the racial disparity in the legal education, one of the final steps on the pipeline.

F. The Bar Exam: The Last Step of the Pipelines to Enter the Legal Profession

After successful completion of law school, minority students face the daunting task of taking a state bar exam. Almost every state requires law students to pass a bar examination as the final step on the pipelines to the legal profession. Unfortunately, the final step can be the most challenging obstacle for African American law students to overcome.

Macon B. Allen, an African American male, became the first African American to pass a state bar exam in 1844. More than 160 years later, African American law students continue to face major hurdles in passing state bar examinations. Today, a number of studies expose a substantial gap in the passage rate on state bar exams between white and African American bar testers. A seminal LSAC study confirmed the bar passage gap. Few states publish bar passage rates for specific gender and racial groups, but where the data is collected the disparity is clear.

Courts have explored whether the bar exam has any correlation to the practice of law and whether it has a discriminatory impact on African Americans. Courts confronted these issues in the 1970s, and in Richardson v. McFadden the court rejected the challenge and upheld the constitutionality of the bar exam as applied to African American applicants. Also, in the 1970s, a number of states adopted a multistate bar examination to standardize the bar exam among the states. Some thought that standardizing the test would reduce the disparity in the passage rate between African American and white bar exam takers. Thirty years later, the disparity still exists, even with the standardized multistate bar exam. And recently a number of states increased the passing score for the exam, furtherlimiting the entrance of African Americans into the legal profession.

Substantial literature has been written on how African Americans are disproportionately impacted by the bar exam, which delays their ability to practice law. However, there has been little discourse on how to eliminate this disparity. Consequently, passage of state bar exams still remains a barrier for a disproportionate number of African American law students to enter the legal profession.

G. Discriminatory Hiring and Promotion Practices in Law Firms

Many articles address the lack of African American lawyers employed by law firms and working as partners. The question often asked is: Why are African Americans absent from the halls of the elite law firms? The question is quite easy to answer: Law firms engage in both intentional and unintentionaldiscrimination. Major, elite law firms engage in the practice of hiring only African Americans who can assimilate into the traditional white male culture of the law firm. African American males hired as associates by large law firms walk a thin line between maintaining their own culture and self-identity and assimilating into the firm's culture. They are judged based on their race and gender--being black and male. For example, the black male associate must be physically fit but not too muscular, needs to have some connections to the black community but not too many, must have graduated from a top-tier law school or excelled at a lower tier law school, and must be acceptable to white clients. Most of these considerations are based on stereotypical biases that violate federal discrimination laws.

Law firms speak loudly regarding their desire to have diversity. Yet often diversity means hiring someone of a different color or gender whose values, norms, and culture match those of the firm. Law firms also have neutral hiring and promotional practices that have a disparate impact on minorities. Typically, the elite law firms hire new associates who attended the same law schools as the partners, graduated top of their class, were on the law review, and served as federal judicial clerks. These practices, though neutral on their face, operate to exclude African Americans from the high paying positions in major law firms. Law firms have not made any concerted efforts to consider other alternative selection devices to predict the performance of new hires. Instead, they continue with the hire someone like me syndrome.

The retention of African American associates continues to be a significant challenge for the major, elite law firm. A recent survey of associates revealed that 11.5% of African American associates actively sought employment while only 8.2% of white associates reported seeking employment. The pipelines from associate to partner close abruptly as African American associates disproportionately leave the firm for other legal opportunities. Virtually all the blacks who start at a given elite law firm leave before becoming partner. A recent study indicates that more African Americans at larger law firms seek out other employment, worry about retention, and cite a dearth of work as the main reason for finding a position outside the firm. The good news in this revolving door of African American associates in and out of elite law firms is that many will start their own private practice and thus create opportunities for other African American lawyers. The pipelines to private practice may not lead to the financial benefits partners receive, but the ability to manage their firm, hire other African American lawyers, and support community programs may be a greater benefit than the pipeline to partnership.


IV. KEEPING THE PIPELINES FLOWING: SOLUTIONS

The pipeline to law school and into the legal profession starts at elementary school. Because numerous obstacles derail African American males at an early age from the path to obtaining a legal education, school districts should develop programs that enhance their academic offerings and increase the number of African American males graduating from high school and proceeding to college.

Law schools, bar associations, private organizations, and law firms must continue to develop programs to increase the number of minority law students in order to increase the number of African American male students in the pipelines to enter the legal profession. These programs must aim especially at recruitment and retention of African American male students. Even so, law schools must take bold new steps to develop potential African American male applicants. Pre-law development programs may need to start in elementary or at least middle school and should be designed specifically for African American boys.

The overuse or misuse of the LSAT continues to negatively impact the admission of African American students to law school. Law schools should place less emphasis on LSAT scores and more on other predictors for success in law school. For example, the LSAC cites the following factors for law schools to consider, along with the LSAT scores: [a] strong letter of recommendation or personal statement, work experience, or community service that demonstrates a special interest or strength of character, diversity status ... graduate work or specialized studies ....

Law firms must reach beyond just the elite law schools and find diversity in other accredited law schools. Some initiatives include: developing mentoring programs, expanding summer clerkship programs to include African American males, and developing internal retention programs. Fortune 500 corporations should exert economic pressures on law firms to provide legal services by requiring law firms to have aggressive diversity plans to recruit, hire, and promote African American males and other minorities in the firm.

State and local bar associations should study and evaluate the status of African American male lawyers to determine whether more enter the profession today than in the past. Where African American male lawyers may confront roadblocks or obstacles, city or state bar associations should rally their members to actively support the advancement of African American lawyers into the field. For example, state bar associations could evaluate how judges and prosecutors are appointed and elected to determine whether the selection process negatively impacts African American lawyers. Because of their complexity, the pipelines to these positions require continual review. Judges and prosecutors, at all levels of the government, should also develop diversity plans.

The process of selecting judicial clerks should include a mechanism to ensure that hiring practices, though neutral, do not unintentionally exclude African American males and other minority groups from these prestigious legal positions within the court. The pool of qualified applicants must be expanded to ensure diversity.

Similarly, law schools must look beyond law professors who attended only certain law schools or served as judicial clerks when hiring tenure track law professor positions. Such systems further perpetuate the exclusion of qualified African American lawyers as law professors.

The various initiatives implemented by bar associations, law firms, and programs developed by law schools will not totally eliminate the barriers African American males face in their pursuit of a legal career. We must revamp our public education systems and incarceration policies to lessen the negative impact both systems have on the growth and development of African American male students.


CONCLUSION

The struggles and barriers faced by African American males to enter and advance into the legal field are almost insurmountable. Even with a history of legal victories to eliminate racial exclusion and segregation of African American males from law school, the number of African American males entering the legal field appears to have peaked. The legal community must vigorously renew its efforts and commitments to ensure African Americans, particularly African American males, have an equal opportunity to enter and advance in the legal profession.

 


 

. Professor, Capital University Law School (Columbus, Ohio).

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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