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Dean's Desk: Are we satisfied with the color of the legal profession?

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ivan Bodensteiner DeanIn an earlier article (Indiana Lawyer, Aug. 28, 2013; Vol. 24, No. 13), I questioned the accepted wisdom that there are too many attorneys in the United States and suggested the problem may be in the distribution. I also questioned whether the lack of diversity in the legal profession leads to questions about the credibility of our system of justice. Ms. Odendahl addressed diversity in her article entitled, “Diversity in legal community growing, but pace too slow.” (Indiana Lawyer, Sept. 11, 2013; Vol. 24, No. 14) Others have expressed concern about the lack of racial diversity in the legal profession, but we have struggled in our efforts to make significant change.

Certainly photos of law school graduating classes and bar association members today look different than those taken 40 years ago. The most striking difference is the number of females. Without getting into continuing disparities in earnings and management, law schools and the profession have made progress toward gender equity. Why is racial equity so much more difficult to achieve? Here is my simple answer – the path to law school has always favored privilege and law school rankings, which are far too influential, and result in law schools favoring privilege even more.

In her powerful book, “Moving Diversity Forward: How to go From Well-Meaning to Well-Doing” (ABA 2011), Verna A. Myers says “[w]hite privilege is the name given to the implicit advantages that occur to white people in U.S. society, because they belong to a group that was long ago deemed ‘better than’ or superior” and “without understanding white privilege, it is hard to grasp racial inequality and its causes.” Id. at 109. In short, this is “unearned privilege.” Id. To help understand white privilege, Ms. Myers describes an exercise (“Privilege Walk”) she uses. The participants form a straight line, horizontally across the room, so they all have the same starting point. They are asked to step forward or step back, depending on their answer to each of the following questions:

• If your ancestors were forced against their will to come to the United States, step back.

• If most of your family members worked in careers requiring college education, step forward.

• If you were ever called hurtful names because of your [major identity markers], step back.

• If there were more than 50 books in your house when you grew up, step forward.

• If you were often embarrassed or ashamed of your material possessions, step back.

• If you attended a private school or summer camp, step forward.

• If you ever tried to change your appearance, behavior or speech to avoid being judged on the basis of your [major identity markers], step back.

• If your parents told you that you were beautiful, smart and capable, step forward.

• If your family owned its own house, step forward.

• If you ever were offered a good job because of your association with a friend, mentor or family member, step forward.

• If you believe that an employer turned you down because of your [major identity markers], step back.

• If your parents did not grow up in the United States, step back.

• If your primary ethnic identity is American, step forward.

• If your racial or ethnic group constitutes a majority of your organization’s leadership, step forward.

• If the head of your organization is of your same race/ethnicity, step forward.

• If you’ve been mentored at work by someone of your own race/ethnicity, step forward.

• If most of your clients (customers) are of your same race/ethnicity, step forward.

• If you frequently are the only person of your race/ethnicity at work meetings, step back.

Id. at 112-13. You get the picture. Now, who is in the best position to be the first person to reach the $20 bill, held by a person standing in front of the group? Id. at 113.

In admitting students, law schools continue to rely on factors associated with privilege, including undergraduate GPA (and the prestige or ranking of the institution awarding the degree) and LSAT score (often influenced by the quality of education and ability to pay for a preparation course). As long as factors associated with privilege continue to play a dominant role in access to law schools, progress in diversifying the profession will be very slow. Are we willing to discount white privilege and look for other factors that better predict success in law school and the profession? If not, we should not pretend we want to diversify the profession.•

__________

Ivan Bodensteiner, a nationally recognized authority on constitutional law and civil rights, is the interim dean at Valparaiso University Law School. He has served as interim dean since March 2013.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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