In the aftermath of the horrific deaths of George Floyd, Breonna Taylor, and Rayshard Brooks, and the nationwide protests calling for social justice, the legal profession must take a hard look at itself. While the protests have highlighted the need for fundamental change in the criminal justice system, the battle for racial equality involves every aspect of law.
Justice unquestionably requires a change in policing and mass incarceration. But it also requires a change in how banks lend money, how insurance companies charge for their policies, how hospitals interact with their communities, and how small black-owned businesses are treated. It requires rethinking our education policies, our health care system, our ways of approaching questions about transportation, housing and child care.
Lawyers are critical players in decisions affecting these issues and more. It is essential that African-American lawyers have a seat at the table when such decisions are being made. Yet, at present, the legal system is woefully unprepared for this great challenge.
Despite years of lip service by the leaders of the legal community affirming the importance of diversity, African Americans are significantly under-represented. In 2001, there was widespread concern that Black Americans constituted less than 2% of all law firm partners (1.28%) and less than 5% of all law firm associates (4.37%), those at the beginning of their legal career.
Almost two decades later, those percentages have barely moved. African Americans still constitute less than 2% of all law firm partners (now 1.97%) and less than 5% of all law firm associates (4.76%). The numbers are even bleaker for Black women, who make up a minuscule 0.75% of all partners and just 2.8% of associates.
America should be disappointed with its legal community for failing to live up to its promise. And the legal community itself must commit to truly opening its doors for diversity.
What to do
Law firms must reexamine their hiring systems. Not only are merit and diversity not mutually exclusive, they go hand in hand. A quality law firm requires diversity, both to find the best lawyers and to serve a diverse clientele.
If a law firm’s traditional way of recruiting has not identified qualified minority lawyers, the problem may well be in the way they are searching. Firms should broaden the pool of those they consider in order to ensure that they are locating all the lawyers of merit.
Simply hiring a critical mass of diverse lawyers, while a necessary start, is not sufficient. Once at the firm, minority lawyers must be confident that they will have the same opportunities for success as any other lawyer who is hired.
Studies have found that white males at law firms tend to receive the most mentoring from partners at a firm and the most face time with clients. Unconscious social actions can make minority lawyers feel isolated and unwelcome.
Firms need to pay careful attention to all aspects of their institutional culture and should also conduct regular audits of the assignments, billable hours and training to make sure they are actively promoting equity and inclusion.
The legal community must also work as one to increase the number of African Americans who enter law school. This means working with colleges, especially the Historically Black Colleges and Universities, to identify talented diverse students and ensure they have the same access to mentoring, test preparation services, and guidance that other populations have.
Need-based financing must also be made available, so that those who come from low-income families can afford whatever opportunities are offered.
One of the many lessons America has learned from the events of the past few weeks is that true change requires more than good intentions. It is not enough to decry racism or make a one-time effort to solve a problem. The only question that matters is whether we succeed.
Change is hard work, and discussions on race can be difficult to navigate. Nonetheless, now is the time for all the good people in the legal community — those who believe passionately in the rule of law, those who understand both the moral imperative and the economic benefits of diversity, those who believe that the American promise of equality has been unfilled since that promise was crafted in our Declaration of Independence, and those who realize that this moment in history demands that real change must occur without further delay – to commit to ensuring that diversity becomes a reality throughout the entire American legal system.
Michael Higginbotham is the Joseph Curtis Professor of Law at the University of Baltimore School of Law and Michael Meyerson is the DLA Piper Professor of Law at the University of Baltimore School of Law. They cofounded, and Michael Meyerson directs, the law school’s Fannie Angelos Program for Academic Excellence, a pipeline program to help students from Maryland’s Historically Black Colleges and Universities attend law school and excel in the legal community.