Our country is currently experiencing a reckoning with systemic racism. George Floyd, Breonna Taylor, Ahmaud Arbery, Rayshard Brooks, and countless other Black persons in the United States have been murdered by a system that has fostered racism since before our country’s inception. People from all walks of life have marched in cities large and small all across America to demand that the individuals who committed murder be held accountable and that every toxic piece of systemic racism be dismantled. By some metrics, these marches constitute the largest movement in American history.
Systemic racism has been enforced through racist laws that have infected every aspect of our society including education, banking, housing, the criminal legal system, and the electoral system. Law schools have a critical role to play in dismantling this systemic racism because they are charged with training the future leaders of our nation. This blog post will describe how law schools are pipelines for government positions in America, while also being institutions that have engaged in discriminatory practices. I conclude by providing seven actions that law schools can take to work towards remedying a history of discrimination and ensuring that the legal profession reflects the diversity of our society.
I. Law Schools Are A Pipeline for Government Positions
Our nation’s government has historically been dominated by lawyers: 59 percent of U.S. presidents, 68 percent of vice presidents, 63 percent of cabinet positions, 78 percent of secretaries of state, 100 percent of attorneys general, and 100 percent of Supreme Court justices. In addition, more than half of all members of Congress, charged with enacting laws that impact every member of our society, have attended law school. Clearly, law schools have an outsized role in opening doors and educating people who will write, interpret, and enforce the rules that govern our society. It is no surprise that a Gallup survey conducted for the Association of American Law Schools found that 44 percent of undergraduate students aspiring to attend law school cited a “pathway for career in politics, government or public service,” as one of their reasons for considering law school.
Since our nation’s founding we have only had one African American president, ten African American U.S. senators, nine Hispanic U.S. senators, eight Asian U.S. senators, three Native American U.S. senators, two African American Supreme Court justices, and one Hispanic Supreme Court justice. A myriad of factors have contributed to the abysmal lack of diversity within our government, but two factors must not be overlooked. First, law schools have a history of enforcing discriminatory policies. And second, the legal profession is one of the least diverse professions in America, while also being one of the most powerful professions in society. These two factors combine to create a system where law schools perpetuate, rather than dismantle, systemic racism.
II. Law Schools Have Enabled Systemic Racism
The legal profession must never forget that law schools across the United States have actively participated in the discrimination of African Americans and other communities of color through racist admission policies.
Pearson v. Murray (1936)
Donald G. Murray was a graduate of Amherst College and was rejected from the University of Maryland Law School because he was African American. Donald Murray argued that the law school violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by rejecting his application solely on the basis of race. The University of Maryland Law School alleged that equal treatment had been accorded to African American students through “statutory provisions for scholarships or aids to enable them to attend law schools outside the state.” The law school requested that if the court disagreed with their analysis, then the remedy should be the creation of a new law school exclusively for African Americans “and not in their admission to this particular school attended by the whites.” Ultimately the Maryland Court of Appeals affirmed the lower court’s ruling that the law school had to admit Donald Murray. Donald Murray became the first Black graduate of the University of Maryland Law School.
Sweatt v. Painter (1950)
Herman Marion Sweatt was denied admission to the University of Texas Law School because he was a Black man.Herman Sweatt filed a lawsuit arguing that the decision to exclude him from the University of Texas Law School violated the Fourteenth Amendment to the U.S. Constitution. The trial court and Court of Civil Appeals in Texas ruled against Herman Sweatt because a new law school for Black students had opened and the courts considered it to be substantially equal to the University of Texas Law School. The U.S. Supreme Court unanimously rejected this rationale by explaining that the two institutions were not substantially equal and did not provide similar experiences. This ruling required the University of Texas Law School to admit Herman Sweatt, who became the first Black student to attend that institution.
These two cases illustrate that less than 100 years ago, law schools were active participants in a system that discriminated and oppressed African Americans. Unfortunately, very little progress has been made to mend these past injustices and to diversify the legal profession.
III. The Abysmal Lack of Diversity in the Legal Profession
According to the American Bar Association’s 2019 Profile of the Legal Profession, “nearly all minorities are underrepresented in the legal profession compared with their presence in the U.S. population.” Demographic data from 2019 shows that the racial background of the legal profession in America is 85 percent White, 5 percent African American, 5 percent Hispanic, 2 percent Asian, and 1 percent Native American. According to the latest report by the National Association for Law Placement, only 16.98 percent of attorneys at U.S. law firms are people of color and 8.73 percent are women of color. Research by the Center for American Progress finds that as of August 2019, people of color and women make up only about 20 percent and 27 percent of sitting federal judges, respectively. The Brennan Center’s 2020 study on state supreme courts shows that “while people of color make up nearly 40 percent of the population, only 15.5 percent of state supreme court seats are held by people of color.”
It is also important to recognize that women of color face unique challenges in the legal profession. According to a recent report examining gender and racial bias in the legal profession, “women of color reported the highest level of bias in almost every workplace process in the survey.” Professor Kristen Hardy explains how women of color specifically face double-barreled bias “via a myriad of tired tropes and stereotypes.” These harmful stereotypes about women of color “create an added layer of implicit or unconscious bias that contributes to a dearth of women of color in the legal profession, particularly in leadership positions.”
In addition, former Berkeley Law School Dean Herma Hill Kay’s research provides critical statistical information about women law school deans in America. Dean Kay’s statistical analysis demonstrates that from 1950-2003, only six women of color held office as law school deans in America. Moreover, Professor Laura Padilla’s research portrays how “women overall tend to serve longer than their male peers [as law school deans], but women of color serve shorter terms than women generally and men.”
The appalling lack of diversity within the legal profession has a detrimental impact on our society. Attorneys are endowed with the power to change society via the legal system, but that power is barely being distributed to people of color in our nation. Moreover, the disparities that women of color face in the legal field is unacceptable. Law schools have a duty to remedy these disparities.
IV. Law Schools Must Actively Work Towards Remedying A History of Discrimination While Diversifying the Profession
In Grutter v. Bollinger, Justice Sandra Day O’Connor described the crucial role that diverse law schools play in our society by explaining how, “in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Furthermore, “law schools cannot be effective in isolation from the individuals and institutions with which the law interacts.” Justice O’Connor is correct because students of color and students who have experienced economic challenges bring important perspectives to law school discussions about the law and justice. For example, a student who has personally experienced or whose family has been affected by redlining, voter suppression, or poverty will bring those lived experiences to the classroom and provide important perspectives about how the law impacts society.
Justice O’Connor also wrote in Grutter that the Court expects that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Justice Ruth Bader Ginsburg’s concurring opinion in this case, however, emphasized that one can only “hope, but not firmly forecast, that… progress towards nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.” Moreover, Justice Ginsburg accurately described how “conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals.” Our nation should heed Justice Ginsburg’s reticence to set a sunset provision on affirmative action policies because the effects of centuries of systemic racism, oppression, and injustice cannot be repaired in a couple of decades. Only a long-term plan of systemic reparation policies, of which affirmative action is a component, can begin to heal the deep wounds caused by systemic racism.
In California’s November election, people will have the opportunity to reinstate affirmative action policies in the state. Proposition 16 repeals Proposition 209, which prohibited California from applying affirmative action policies in public education, employment, and contracting. A 2015 study by the Civil Rights Project at UCLA details how after Prop. 209, the percentage of students of color graduating from UC professional schools declined. Research by the Thelton E. Henderson Center for Social Justice at Berkeley Law also shows that Prop. 209 has had a detrimental impact on women-owned businesses. The University of California Board of Regents already expressed support for repealing Prop. 209, and Californians should do the same so that we can work towards repairing the harm caused by centuries of racial and gender discrimination.
As a Hispanic first-generation professional, I feel dismayed at the lack of diversity within the legal profession because it serves as a constant reminder that the path to political office, the judicial bench, and law firms is not as open for people of color. Dismantling systemic racism from every corner of our nation will not happen overnight, but all of us in the legal field have a responsibility to ensure that we get closer to achieving that goal in our lifetime. Law schools, as institutions that endow power to individuals and shape leaders, must also do their part. They can start by doing the following seven things:
1) Admitting more students of color and first-generation professionals;
2) Hiring law school professors from diverse racial, ethnic, and socio-economic backgrounds;
3) Empowering more women of color to become deans and supporting them once they are in these roles;
4) Ensuring that the law school curriculum requires students to learn about how the legal system has promoted inequality and racism;
5) Participating in the antiracist work of the Law Deans Antiracist Clearinghouse Project. This project is led by five Black women law deans: Dean Danielle Conway, Dean Danielle Holley-Walker, Dean Carla Pratt, Dean Kim Mutcherson, and Dean Angela Onwuachi-Willig. The antiracist work involves five phases: listening, learning, leading, audit reporting, and iterative.
6) Establishing programs committed to diversifying the legal profession, such as UCLA’s Law Fellows program, to provide aspiring law school applicants from diverse socio-economic backgrounds the tools and knowledge to help them successfully become law students;
7) Reimagining the admission process by eliminating the LSAT as an application requirement.
To this last point, universities are already making incremental progress. The University of California system has already decided to no longer require applicants to provide an SAT score for college admissions. Former Berkeley Law School Dean Christopher Edley and Executive Director of Just Equations Pamela Burdman have written about how college admissions tests such as the SAT perpetuate inequality and are weaker predictors of college performance than high-school grades. In addition, Professor Richard Delgado, a Berkeley Law alumnus, has described how “standardized testing originated early in the twentieth century as a way to demonstrate the intellectual superiority of northern European whites.” Professor Delgado goes on to explain how the LSAT and other standardized tests are not good at predicting academic achievement but are highly correlated with economic status.
It is up to all of us to demand that law schools recognize the role they have played in systemic racism, commit to enacting institutional changes that help remedy these past wrongs, and work towards a more equitable and just future.
Francesco Arreaga: J.D. Candidate at UC Berkeley School of Law (Class of 2021), B.A. in Political Science and Chinese from UCLA in 2017.
Recommended Citation: Francesco Arreaga, Law Schools Have A Moral and Social Responsibility to End Systemic Racism, Calif. L. Rev. Online (July 2020), http://www.californialawreview.org/law-schools-systemic-racism.