by Courtney M. Echols and Tremayne W. Wilson
In 2015, Stanford University professor Deborah Rhode proclaimed, “the law is the least diverse profession in the nation.”1 This remains the case, despite the fact that, for decades, law schools and firms have devised initiatives intended to enhance diversity, equity, and inclusion (DEI).2 DEI efforts and surrounding conversations have further moved to the forefront in the wake of the outrage following George Floyd’s murder in 2020.3 Despite the increased attention to these matters, a wide gap remains between what these initiatives hope to achieve and what they actually have accomplished. As evidence, 88% of lawyers in 2021 identify as white and 62% identify as male despite making up only 60% and 36% of the U.S. population, respectively.4 Meanwhile, according to at least some measures, racial diversity in the profession has either halted or even regressed, as Black people make up 13.4% of the population and only 4.7% of lawyers, a slight decrease from nearly a decade ago.5
Law firms, as a whole, also have not been restructured according to DEI goals per a 2021 ABA survey that found whites comprised 90% of law firm leadership.6 While representation of women, LGBTQ+ people, and individuals with disabilities within firms has increased in recent years, these groups continue to be underrepresented at both the associate and partner levels.7 As of 2021, women still account for fewer than 20% of all equity partners despite making up more than a third of the profession; in fact, non-traditional track/staff attorneys is the only position in which women are the majority, comprising an estimated 56% of these positions.8 While representation of associates and partners who identify as Black, Latinx, Asian, or Native has increased over the past decade, so too has their representation among non-traditional track/staff attorneys.9 These racial groups remain overrepresented among non-traditional track/staff attorneys, accounting for a combined 23% of those in these positions.10 Further, the gains made among people of color in associate and partner positions have largely been driven by lawyers identified as Asian, although Latinx representation has also grown in recent years.11
The data show, however, that both entry and advancement among Black lawyers have failed to keep pace with Latinx and Asian attorneys, a gap that continues to widen.12 Black attorneys continue to account for only an estimated 5% of associates, a number that has remained relatively stagnant since 2009.13 Representation of Black lawyers among partners has only minimally increased from 1.71% in 2009 to 2.22% in 2021, and these numbers are even more dismal for women of color.14 Black and Latinx women each continue to comprise fewer than 1% of all partners in law firms.15 Further, research illustrates the likelihood of aspiring to attain promotions is greater among women of color than their male counterparts, and women of color also are more likely than white women to desire to be top executives and to seek advancement.16 Yet, Black, Latinx, Asian, and Native women combined account for only 12% of female equity partners and a mere 2% of all equity partners, a number that has remained unchanged over the past twenty years.17 These data suggest that the small gains being made by women in the profession are being realized almost exclusively by white women. These numbers also reveal that there has been little progress in advancing diversity within firms, especially among Black lawyers. Women of color, particularly Black women, continue to be the most underrepresented group at all levels and across all firm sizes.18
Further compounding the lack of diversity within firms, scholars have demonstrated how racism continues to plague every aspect of the workplace including hiring, retention, and promotions.19 Race continues to significantly impact the job interview process, particularly for Black lawyers,20 and even though Black attorneys are increasingly being hired, they still face significant challenges once within the firm that in turn results in higher attrition rates.21 For example, Black lawyers are more likely to receive lower quality work assignments,22 and more likely to be placed in firms’ “flatline track” in contrast to their white counterparts who are placed on the “training track,” rendering them more competitive for partnerships.23
Failure to retain Black lawyers only further compounds the diversity problem. Even when afforded opportunities for advancement, Black lawyers are still held to higher standards in the workplace24 and are less likely to receive adequate mentorship.25 Black associates are also less satisfied with their job experiences than their white counterparts,26 and controlling for professional, demographic, and educational factors, Black attorneys are more likely than any other racial group to exit firms for any reason.27 Research also illustrates that race is a better predictor of layoffs than workplace or educational factors, and all else being equal, Black lawyers are more likely than whites to be fired.28 The initiatives intended to enhance DEI have not altered these statistics. Indeed, evidence demonstrates that white women continue to be the primary beneficiaries of many initiatives intended to enhance DEI.29
People of color, and Black people in particular, also face significant challenges in even joining the profession which in turn contributes to the lack of diversity within firms as well. To this end, the lack of diversity within firms is at least in part a reflection of the lack of diversity within law schools.30 As with the lack of diversity within firms, diversity issues in law school persist despite continued efforts to advance DEI in these institutional settings,31 and scholars have argued that, similar to DEI initiatives within firms, those within law school settings too often perpetuate, at the same time that they conceal, anti-Blackness.32 For example, universities frequently tout themselves for their diverse student population or for being a predominantly person of color (POC) serving institution, even as Black students comprise only 1% of the student body.33 Further, previous DEI initiatives are often criticized for being too outdated, focusing on strategies that have been proven time again not to produce meaningful and lasting change.34 For example, hundreds of studies dating back nearly a century illustrate that anti-bias training does not reduce bias,35 yet we continue to see law schools implement these training programs at staggering rates. Other efforts tend to focus on increasing representation of BIPOC (Black, Indigenous, person of color) students and faculty. However, scholars have demonstrated that these initiatives, too, are bound to fail if they are not coupled with efforts to dismantle the systemic roots that produced these racial inequalities in the first place.36 DEI initiatives are also often underfunded, reinforce the status quo, and fail to thoughtfully consider the design and implementation process, thereby tasking BIPOC students and faculty with identifying, solving, and overseeing DEI matters.37
Additionally, scholars have attributed the lack of diversity in law schools to, among other things, for-profit education,38 standardized testing,39 Eurocentric curricula,40 and educational environments dominated by whiteness,41 which all in turn undermine any expressed desire to enhance DEI.42 To this end, law school admission decisions continue to rely heavily on the LSAT, despite evidence that the exam reinforces racial disparities, and like the bar exam, is a better predictor of access to resources than it is competence or skills needed to succeed in law school or the legal profession.43 But, many argue that this is not surprising news: the legal field has known for over half a century that BIPOC students perform more poorly on the exam than their white counterparts.44 The reasons for this disparate performance are also widely known, and include prior education disparities, economic resources, and biased questions.45 The LSAT results tend to divide applicants on the basis of race and class, in which 50% of Black applicants receive zero admission offers due largely to LSAT scores.46 Among those that are admitted, Black students are disproportionately accepted to schools unranked or ranked in the lowest tier.47 Meanwhile, whites makeup 80% of students admitted to law school, although they represent only 68% of applicants.48 Thus, critics argue that the legal education’s continued reliance on LSAT scores reinforces a system that inexorably favors white candidates.49
Further compounding these racial disparities, lower LSAT scores translate to a decreased likelihood of receiving a merit-based scholarship, meaning BIPOC students are having to pay more to attend these lower ranked schools.50 In this sense, critics argue that through their tuition, Black students are perversely funding the scholarships and thus the education of their often wealthier and white peers.51 Meanwhile, needs based funding has remained stagnant while law schools continue to increase merit-based funding.52 Even still, research suggests that scholarships awarded based on financial need function merely as “merit-based scholarships by another name,” having little to no equitable impact.53 Yet, the costs of law school are significantly “more than students can afford to finance on their expected earnings following graduation,”54 tuition costs are continuing to rise,55 and free legal education is often dismissed as preposterous.56 This then contributes to greater student loan debt among Black students, further stacking the deck against them. For these reasons, many argue that any actualization of DEI requires addressing the costs of a legal education, which disproportionately burden Black students due to generational wealth disparities.57
Even if Black students have the resources to surmount the financial hurdles of law school, perform better than or equal to their white counterparts on the LSAT, and hold an equivalent undergraduate record and GPA, they still must endure racism within law school that in turn negatively impacts their ability to succeed educationally and in the legal field.58 Studies find that even after controlling for LSAT scores, work/college experience, undergraduate major and GPA, and a host of other factors, BIPOC students are still more likely to receive poorer grades in law school than their white peers.59 Simply identifying as a person of color negatively predicts law school GPA.60 This is in part the result of the privilege afforded to white students, who are more likely to have greater social capital and economic resources.61 Meanwhile, BIPOC students are more likely to experience food and housing insecurities and higher rates of loneliness and emotional stress, anxiety, depression, and hopelessness.62 Amidst demands to return to “business as usual,” BIPOC students experience much greater burdens than whites as a result of COVID-19, resulting in “greater loss of loved ones, more financial and housing challenges, less access to the technology needed to engage in academic obligations, and inadequate access to healthcare.”63
Further, a predominantly white legal field means fewer BIPOC faculty members and mentors who can engage and connect with marginalized students.64 These factors not only negatively impact mental health, but they also hinder academic performance and ability to thrive in law school.65 Repeated experiences with racism, discrimination, and stereotyping from faculty and peers make law school more difficult for Black students and other students of color66 in a way that white students do not experience.67 It is not surprising, then, that the attrition rate is highest among Black students compared to all other racial groups.68 While complaints about the lack of diverse content in law school courses have existed for decades,69 matters of race are too often relegated to elective classes.70 Critical race scholars have demonstrated time and again how race intersects with every single area of law, and have even provided educational guidance on how to incorporate these issues into the core classes.71 As law schools continue to disregard these recommendations, critics argue that this produces race-illiterate graduates who are ill-equipped for a legal career in a field that is so highly racialized, the consequences of which can be violent and material in the criminal justice system, including harsher sentences for Black people than for white.72
In conclusion, diversity within law firms is in part contingent on diversity within law schools, and centering Black students’ experiences in law schools, and radically transforming anti-Black policies and practices are necessary starting points for meaningful advancement of DEI in the profession. Current DEI initiatives fail to address the systemic causes of racial disparities in the field. That is, formal legal education in this country was founded on classist and racist premises. Therefore, without addressing these historically racist roots of law school specifically, and the profession more generally, DEI initiatives in the legal field won’t effect change. Rather, they will continue to function merely to sustain and reinforce racism and the dominant white power structure. Any effort to seriously advance DEI in the legal profession requires us to dismantle the oppressive structures that harm students of color, particularly Black students, which also means radically reimagining our approach to legal education. So long as these aforementioned systemic issues remain unaddressed, the promises of DEI initiatives in the field will continue to remain elusive.
ENDNOTES
Courtney M. Echols is a PhD candidate in Criminology, Law and Society at University of California, Irvine, and also a second year law student. She is a community organizer with the Stop LAPD Spying Coalition and UCI4COLA, which is part of the Orange County Mutual Aid Collective, a larger network of organizations that center radical Black, Indigenous, and persons of color political agendas and struggles through direct action, advocacy, mobilization, and education. Tremayne W. Wilson is an associate attorney for Horton, Oberrecht & Kirkpatrick in Irvine and currently serves as the treasurer for the Thurgood Marshall Bar Association. He is an alumni of the University of California, Irvine School of Law.