The Realities of Diversity in the Legal Profession

By PROFESSOR DEMETRIA FRANK

Against the backdrop of witnessing the disproportionate impacts of COVID-19 on black and brown communities, George Floyd’s death was a digital slap-in-the-face reminder that no matter how strongly committed to justice we are as individuals, injustice is permeated in our most important institutions. This wakeup call was particularly important for lawyers because we have an ethical obligation to hear the voices of the oppressed and respond in ways that produce equitable change.

With this renewed conversation about who we are as purveyors of the legal system, comes an extraordinary moment to more collectively and broadly promote justice and feed the pipeline to legal education for diverse individuals. However, to make the most of this moment and fully embrace the Black Lives Matter movement (which should not be a controversial thought), we need to start by dealing in reality.

The most obvious reality is that we have a very long way to go in diversifying the legal profession. Attorneys of color are underrepresented in every area of the legal profession relative to percentage of the general population. While 61% of the U.S. population in 2017 was White non-Hispanic, nearly 89% of lawyers were white. As for lawyers of color, 4% were Black or African American (compared to 13% of the population), 4% were Hispanic or Latino (compared to 18% of the population). Only 35% of all attorneys are women, and women continue to be underrepresented in top-level jobs within the legal profession, such as law firm partner and judgeships. Of lawyers that report being disabled, the profession sees big disparities. Disparities likely also exist for lawyers identifying as LGBTQIA+, although representation in law firms has been steadily increasing since the

National Association for Law Placement (NALP) began capturing this data. Despite these scathing figures, many organizations fundamentally believe that they have a “commitment to diversity” just because they say so.

Second, it is impossible to “eliminate” bias and inequity. One of the American Bar Association’s only four stated goals is to “enhance diversity and eliminate bias.” This laudable goal demonstrates how far the organization has come, especially considering when it was initially formed, black lawyers were excluded from membership. However, the unfortunate reality is that no set of initiatives can “eliminate” bias.

We are all subject to bias. Even well-intended people have it. We have always judged people based on perceived group characteristics and will likely always do so. For those who are willing, we can get better at it and learn to bias less, but there is no such thing as bias elimination. Knowing that bias is inevitable, the better approach is to incorporate bias protection into our systems, strategy, and planning for diversity initiatives.

Another reality we must accept is that the culture of legal environments often discourages diversity. Not only are the cost of legal education and other admission criteria very real obstacles to entering law school, but law school culture is described as one that fosters "competition and conformity," where grades and class ranking are of utmost importance. In light of the educational deficits experienced disproportionately by students of color, this culture of competition and conformity is often at tension with law school and employer goals of creating and maintaining a diverse student body. Legal employer practices, such as only hiring from the top 15%-25% of the class, reinforces this competition and conformity, and inevitably becomes a part of similar cultural practices of legal environments in the real world. Moreover, if we are fortunate enough to attract diverse individuals to the profession, we do little to ensure the unique experiences they bring to legal practice are valued.

Additionally, we must deal in the reality that the inequities that prevent a more diverse legal profession begin well before law school. As a result of what is now understood as the “achievement gap,” black and K-12 students are nearly three times more likely to be held back, ultimately leaving diverse law school applicant pools weaker than white applicant pools. Black students are also less likely to graduate from high school and more likely to attend schools where most of their peers are in poverty or low-income. At least in part due to educational budgetary deficits in urban areas where most students of color live, black and Latino-Hispanic students are less likely to have access to the support needed to perform well educationally. Students of color are also less likely to have access to extracurricular activities that develop skills which prepare students for law school such as debate, public speaking, pre-law societies or student government.

The monstrous criminal justice system results for racial minorities and a disproportionate number of youths of color entangled in the juvenile justice system, also inevitably impacts the viability of diverse law school applicant pools and diversity in the profession. The reality is that black and Latino-Hispanic students receive disproportionate levels of discipline contributing to the school-to-prison pipeline, and are significantly more likely to go to prison or jail in their lifetime. Additionally, with one-in-fifteen black children with an incarcerated parent, the children of the incarcerated also suffer great harms in terms of emotional development, financial support, educational opportunity, and therefore, feasibility of undergraduate and law school admission.

As a result of abysmal justice and law enforcement policies, there is also great distrust in the legal system by many black and brown Americans compared to others. For example, one study concluded that only 37% of black Americans have “a great deal or quite a lot of confidence” in the justice system compared to almost 60% of white Americans. This lack of trust in legal institutions certainly negatively impacts sentiments of black Americans that might otherwise seek a legal career. Nevertheless, the criminal justice system severely needs more lawyer advocates that normalize the value of black lives in pursuit of criminal justice reform.

The last reality to which we should take note is that our lives and future likely depend on diversifying the legal profession. Racial division has forever undermined the democratic values we say we hold dear, and with over two million people behind bars in prisons, jails, and other correctional facilities, ideals of the United States as a supposed leader of democracy and the free world are seriously challenged. There is a critical need for lawyers of color because black and brown individuals are disproportionately intertwined in the criminal justice

system and diverse lawyers are more likely to promote equitable legal policies and principles and better understand the impacts of systemic injustice.

Planning for the next generation of lawyers in light of the Black Lives Matter movement and other direly needed social improvements, means significant investment in young people early in ways that matter. The private nor public sector has corrected the fact that it is more expensive than ever to obtain a college and law school education, and it is up to us to collectively ensure the legal profession is a diverse one. Although the University of Memphis Cecil C. Humphreys School of Law ranks high in affordability as compared to most institutions, it is still quite unrealistic for most citizens and especially people of color and low-income families.

We need to create opportunities to tell young people about what lawyers do, develop skills, and open minds about the law as a potential career. We need lawyers creating legacies and affinity groups and other programs that promote skill development in young diverse students. We need new lawyers who will be active alumni and stay current about what their alma mater does to enhance diversity. We need lawyers considering what they will do on a day-to-day basis to guarantee that the profession looks drastically different demographically by the time

they retire. We need people and organizations willing to make significant financial investments in young people from diverse communities.

Additionally, we need lawyers willing to speak truth to power—and for this to become normal behavior. This truth must speak in terms of equity and humanity on issues such as wage and wealth disparity, economic mobility, educational disparity, disability and mental health rights and immigration. We cannot ignore the reality that all of these things contribute to disparities in the legal profession.

As lawyers, we each have a role to promote equity and access to justice. As leaders of legal organizations, we have an obligation to do the same as well as deepen the talent pool in the legal field, while building opportunities that go beyond creating a mere impression of diversity. To do so, we must go beyond calling in favors to law school administrators to help “look out” for exceptional diverse candidates when hiring committees are formed. Ultimately, to lead to more candidates for legal organizations to hire in the future, we should ask, “How can I help promote justice so that there is a wealth of diverse candidates for academic institutions to promote and groom?” 

Professor Demetria Frank joined the University of Memphis Cecil C. Humphreys School of Law faculty in 2013, and was appointed Director of Diversity in February 2020. She also leads Project MI, which addresses mass incarceration.