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.