Lip Service and Diversity in the Legal Profession: Time for A Reality Check by Diane L. Abraham, Esq.*
The legal profession is a vital player in shaping our national history. Indeed, the law writes the script for the ongoing American drama, with attorneys and jurists serving as actors connecting society and the law. The legal community possesses the power to humanize, or dehumanize, our legal system.
Our system of jurisprudence is, however, marked by racial injustice and gender bias. Because of these genuine inequities, the law becomes a paradigm of exclusion rather than empowerment for both practitioners and those seeking judicial remedies. Legal practitioners therefore have the awesome responsibility to either be providers or precluders of equal access to justice for minorities and women.
As America grows into the 21st century, our profession is in danger of losing touch with reality because it fails to resemble the national population. Specifically, the U.S. Census reports that America is a racially diverse nation made up currently by 30% people of color, and approximately 51% female. Projections are that as a nation, minorities will comprise 50% of the population by the year 2050. Nonetheless, the law is controlled by a largely white male force. Statistics show that 90% of the legal community is white, and of that, more than 70% are men. This is a perverse reflection of what America is and will become in the next forty-eight years.
The legal profession must shed its fossilized state...the time to stop paying lip service to diversity is long overdue. Our profession, in pursuit of justice for all races and both genders, must not ignore its unenlightened past, but address it head-on. This is critical to align the legal community with the general make-up of the population and satisfy fundamental ideals of fairness. Attorneys and jurists should be hired, appointed, elected, reviewed and promoted on the basis of ability instead of DNA and skin color. Likewise, people served by the legal profession must be treated without bias. For all participants, the appearance of justice is as important as justice itself. But justice will continue to elude participants and our communities at large if the legal profession itself engages in overt and subtle forms of biased conduct. Recognition that disparate treatment between the races and the sexes exists is only the beginning. One of the first organizations addressing the treatment of women in the legal profession was established in 1974 by the Association of Trial Lawyers of America (ATLA). The Women Trial Lawyers Caucus still seeks to diversify ATLA’s membership, since women today comprise only 16 percent of ATLA’s membership. Another group, created in 1987, is the American Bar Association’s Commission on Women in the Profession. Its original purpose was to assess the status of women, and now it serves as a voice for female lawyers. The Commission’s latest reports find that although there is some progress in employment diversity, equally-qualified women who practice law continue to be paid significantly less than male counterparts. (American Bar Journal, September 2000).
The numbers for minorities in the profession also show a chasm demanding correction. The total minority representation is about 10 percent, obviously disproportionate to the general population, and significantly lower than other professions. Additionally, while the proportion of law students of color have doubled since 1986, minority law school enrollment has increased only 0.4 percent over the past six years -- the smallest increase in 20 years. (Bar None, Lawyers for One America, 2000). Nationally, less than 3 percent of all partners in law firms are minorities. Similar statistics are found by state. In California, one of the most diverse jurisdictions, minorities comprise only 17 percent of its attorneys. (California Bar Journal, September 25, 2001) In Oregon, a mere 2.66 percent of partners in law firms in Portland are attorneys of color. (Oregon State Bar Bulletin, January 2002). The most powerful tool to effectuate diversity is to eliminate bias at its roots before stereotyping develops. This requires education. Every member of our profession, from law student to jurist must be diversity-enlightened. Law firms and bar associations must go beyond their own doors — inside of which diversity in hiring, retaining, promoting and recruiting practices should already be implemented — to support at least one law school scholarship program furthering diversity. Attorneys should also seek associations and law schools with mentoring programs which make diversity a goal. Additionally, jurists must be specifically required to comply with similar diversity protocols so that courtroom demeanor is free from bias, and honestly reflects justice. Further, we should be proactively urge Congress to fully fund the Thurgood Marshall Legal Educational Opportunity Program, demonstrating a commitment to provide equal opportunity for students of color to pursue a legal education. The hurdles are clear: It will take time to overcome ingrained notions of who can best hold the scales of justice. Meanwhile, we cannot complacently allow past preconceptions to continue. Diversity must be a goal we pursue as people sworn to uphold a Constitution decrying discrimination. We are players with different instruments in a legal orchestra, with similar goals to pursue justice and defend liberty. Gender and racial equality in the legal community will reflect our national population, and is the best way to accomplish that which we swore to uphold when we took our oaths as attorneys.
*Diane Abraham chairs the Women and Minority Involvement Committee of the Tort and Insurance Practice Section of the American Bar Association, where she also serves as liaison to the Commission on Racial and Ethnic Diversity. She is an active member of the Oregon, Utah, Hawaii and California State Bar Associations, and a certified appellate law specialist.