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.