In 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.