More Than 57 Years After Sweat v. Painter, Racial Inequity Persists In Legal Education

Saturday, March 1, 2008 - 01:00

More than 57 years have passed since the Supreme Court swept aside segregation in state law schools, in Sweat v. Painter (1950). And nearly 54 years have passed since the Supreme Court invalidated school segregation in its landmark decision Brown v. Board of Education , yet racial inequity persists in legal education, despite efforts being made by law schools, law firms and others to level the playing field.

In law schools across the nation, racial inequity is clearly visible, as disproportionately fewer minorities, and especially black males, are admitted to law schools than their white counterparts, and even fewer graduate. Smaller numbers of black male students are pursuing and obtaining a legal education, partly as a result of the leakage of young black males at various stages along the educational pipeline and to the lasting effects of segregation.

While there is no "quick fix" to the current plight of young black males, there are ways by which law schools are attempting to combat these problems. Law schools are working to increase the number of, and retain, black male students through affirmative action policies and academic support programs, by partnering with local community-based organizations and by building relationships with law firms.

Brown marked what should have been a fundamental turning point in our nation's history. The decision created an expectation that America was finally embracing its founding principles of fundamental fairness and equity. Since then, however, some have argued that Brown has lost much of its bite.Last June, the U.S. Supreme Court ruled that voluntary desegregation efforts by public schools that use race as a basis for assigning students to schools as a means of diversifying student bodies and promoting racial integration were unconstitutional. Such a ruling has several implications, since attaining a proper education from the early years of a child's life affects the pursuit of higher education later on. Studies have shown that gaps in academic achievement between black students and white students are due, in part, to segregation in primary and secondary schools. In 2004, a joint study by the Civil Rights Project at Harvard University and the Urban Institute found that the national high school graduation rate for black males was approximately 43 percent. A 2007 National Urban League report stated that after elementary school, young black males tend to fall behind academically or drop out of school completely. Writing proficiency scores between black and white male students, for example, widen as they grew older. By the fourth grade, a 13 percent gap exists between the scores of black male students and their white counterparts. By the eighth grade, that gap rises to 26 percent. Although a myriad of theories has been posited to explain this gap in academic achievement, the end result is alarming. As more black males drop out of school, their employability and standard of living drastically drops, and their likelihood of incarceration increases.Obviously, the more dropouts, the fewer black males attending college or law school.

While the pipeline issue leading to a post-graduate degree is important, black students who have arrived at the doorstep of the legal profession have overcome those initial hurdles and are ready to begin their legal education. Yet, on average, black students obtain poorer grades than white students, and studies indicate that in their first year, half of them are in the bottom tenth of their classes. Black students, especially males, tend to drop out more often, and among those who graduate, many have difficulty passing the bar.

One of the arguments set forth to elucidate this phenomenon is the role of affirmative action on law school admissions. According to UCLA law professor Richard Sander, employing race-based preferences in the law school admissions process adversely affects black students, because it places them in an environment where they are "overmatched" with their classmates due to their lower grades and LSAT scores. He says they do less well than their classmates in law school and on the bar exam.

Sander's view, however, is challenged by numerous studies showing that attending an elite school had no negative effect on black graduates' bar passage rates and that eliminating affirmative action would reduce the number of black lawyers by 12.9 percent.

Harvard law professor David Wilkins suggests that without affirmative action, black law students would be deprived of valuable opportunities that are associated with being in top law schools, such as networking and job opportunities.He argues that big law firms generally draw their summer associates from top law schools and eventually draw their black partners from the same pool. In addition, according to recent data from the American Bar Association, the highest percentage of black law students is not at elite law schools but at historically black universities, accounting for 15.6 percent of all black law students in the U.S. Even so, blacks only comprise a majority at two of the six schools. At Howard University Law School, blacks make up nearly three quarters of all students and at Southern University they make up 55.6 percent. With respect to the law schools at Texas Southern University, North Carolina Central University, Florida A&M University, and the University of the District of Columbia, blacks are less than one half the student body.

According to the U.S. Census Bureau in 2000, blacks represented approximately 12 percent of the U.S. population, yet only 3.9 percent were practicing as attorneys. One of the reasons for such a small percentage is that black students have the highest rate of law school attrition among all racial and ethnic groups.

In order to reduce the rate of attrition, a number of law schools have implemented academic support programs that help students develop the skills that are critical to success in law school. The University of the District of Columbia, David A. Clarke School of Law, for example, offers a summer program to students from diverse backgrounds with academic potential but who require additional assistance prior to beginning law school. Brooklyn Law School has a summer program as well and invites minority and other students to participate in a two-credit coursetaught by its full-time faculty. Students in the program are exposed to case law development, statutory analysis and legal writing and take both a practice and a graded final exam. No tuition is charged for theprogram.

In addition, in order to increase admissions and retention rates, law schools are partnering with local community-based organizations and working with area high schools. For example, like many law schools, Georgetown University School of Law offers its students the opportunity to teach a practical law course to urban high school students as part of its Street Law High School Clinic. The program recruits black and Latino students as participants. Similarly, law students at The University of Pennsylvania teach a 15-week course to middle and high school students. At the University of California, Hastings College of the Law, high school and college students are invited to the law campus for a day or more to expose them to the law school experience and cultivate an interest in the pursuit of a legal education. Some law schools also utilize the summer to engage high school students. For example, the Lewis & Clark Law School in Portland, Oregon, sponsors a weeklong summer law camp for middle school students. The program, taught by faculty and law students, targets those students who would be the first in their family to attend college and shows them "how they can affect the legal system rather than just be on the receiving end of it."

In addition to law schools, other organizations provide opportunities for students who may be interested in pursuing law. The Institute for Responsible Citizenship in Washington, D.C., for example, is a leadership program for black male college students. One of its programs, the Washington Program, gives black male college sophomores the chance to intern in the nation's capital while taking classes at Georgetown University. Another organization, the National Bar Institute, awards fellowships and scholarships, and sponsors competitions to increase the number of minority law students. A number of law firms and corporations also provide fellowship opportunities to first and second year minority students to promote diversity in the profession.

Although it is important for law schools to address the problem of low admission rates and high attrition rates for black male law students, the legal profession should not lose sight of the pipeline issue. Early childhood education programs and community-based outreach programs such as Street Law, StreetSquash, Legal Outreach, and others that are targeted at urban youth, are encouraging black and other minority youths to pursue educational endeavors and take an active interest in their communities. Through these alternative means, perhaps law schools and members of the legal community can lessen the effects of segregation that still persist in our society.

Kenneth G. Standard is General Counsel to and a Member of the Firm of Epstein Becker & Green, P.C. He is a former president of the New York State Bar Association. Nazneen Malik is a third year law student at Pace University School of Law and an intern at Epstein Becker & Green, P.C.

Please email the authors at kstandard@ebglaw.com or nmalik@ebglaw.com with questions about this article.