by Ryan Wilson
Thurgood Marshall once asked, “What is the quality of your intent?” – a question that remains relevant and that is now more than ever in need of a response. In truth, the numbers are often reported and consistently low: African Americans make up 61% of law school applicants rejected from all schools they apply to (as opposed to 34% of white applicants), comprise only 4% of private practice lawyers and are only 3.9% of all practicing lawyers in the country. In a country where 40% of those in prison are African American, and where inequity can be found all throughout the social landscape, the need for advocates of color remains as high as ever. In the face of these harrowing statistics is an even deeper problem: as a community of color we have lost our footing in the fight against racial oppression in the legal field, and in many respects have internalized some of barriers that make the battle more difficult. While the quality of the intent of those who create the “neutral” standards we abide by remains as sophisticated as ever, Black attorneys are, as a group, lethargic in responding to and even complicit in institutionalizing standards that are disfavorable to the greater African American community.
Recently, the Standards Review Committee of the ABA’s section on Legal Education recommended a new accreditation standard that would require all law schools to have an annual 75-80% bar passage rate in order to continue to retain their accreditation. On its face, this standard appears to be a neutral result of increasing pressure for law schools to produce students that are prepared for an industry in flux. Such a standard, however, would inherently encourage law schools to rely more heavily on the LSAT in the law school admissions process – a test that on the whole minorities do not perform as well on as their Caucasian peers. Providing law schools with a requirement that is liable to decrease the number of minorities accepted to those schools is a clear example of a facially neutral standard that is detrimental to would-be Black attorneys. Our loss in this fight has been to such an extent that the current battle is not even in opposition to the test itself, a test which since its creation in 1948 by an all white male committee has helped to produce a legal field that is nearly 90% Caucasian, despite proof that individuals with lower LSAT scores can graduate, pass the bar, and become excellent attorneys.
Some standards, however, are not as tangible as the ABA’s proposed rules discussed above. Once accepted into law school, the few black students that do attend are faced with ever increasing pressures to pursue dreams that are largely not our own. In addition to the practical concerns surrounding student debt that many Black law students face, many view their future success in law school and post-graduation according to a rubric that was not established by a group of their peers. The result is cohorts of African American law students that are largely disengaged from the issues that disproportionally affect their community. While many talk about the idea of “giving back” or even earnestly have a heart for social justice, few are willing to step out of line and use our newfound legal skills to resolve the problems we see. Sadly, a growing number of Black law students don’t even see a problem at all. Instead of chasing the example set by Mr. Marshall many of us are faithfully following “Mr. Benjamin” hoping to one day live up to the standards established by the ancestors of our majority peers.
To be clear, this is not a rehashing of the private vs. public work discussion (a dichotomy that I believe is non-existent), an endorsement to accept not performing as well in school as our peers, or a call to not wish to attain wealth, but rather a plea to reimagine our roles as advocates no matter where we go to work everyday. With access comes a platform and the opportunity to do what great modern day lawyers like Attorney General Eric Holder are doing. It is both possible to succeed under the current rubric while also using our budding skills as attorneys to talk about and advocate for important issues of the day. To borrow from another quote from Mr. Marshall, “mere access to the courthouse does not by itself assure a proper functioning of the adversary process.” I would submit that access to law school or the firm of our choice doesn’t assure that we are fulfilling our role as advocates either. Going forward, let’s fight against injustice in all of its forms, especially when we have figured out how to individually overcome it. The fate of those who haven’t yet overcome these barriers demands that we do.