The underrepresentation of minorities in the legal profession: a critical race theorist's perspective.

• Author: Johnson, Alex M., Jr.
• Position: Symposium: Representing Race

Over the last four years, I have taught a course in Critical Race Theory at the University of Virginia School of Law three times. Although each course is different, given the interplay between the teacher and the students and the integration of new developments into the course, there has been one constant subject that the students and I address: Of what import is the development of Critical Race Theory for the legal profession and larger society? Can Critical Race Theory have a positive or any effect for those outside legal academia? This article represents an attempt to explore that question by focusing on the role that Critical Race Theory can have on the legal profession.

Part I analyzes an issue that is often overlooked in a discussion of our legal system: the continuing paucity of attorneys of color, in particular black attorneys,(1) in the legal profession. After demonstrating the lack of diversity in the legal profession, Part I explores the dissonance between what law and lawyers espouse when it comes to issues involving equality, civil rights, and the elimination of racism and oppression in American society (hereinafter collectively referred to as "liberal social issues"), and what lawyers actually do within the profession by paying singular attention to their hiring practices. In other words, I examine how it is possible that lawyers can so idealistically support liberal social issues, while at the same time maintaining a system of self-selection (and to a lesser degree, laws) that is rife with substantive defects attributable to the systemic effects of racism -- disproportionately few minorities and women within the profession and unequal treatment of those individuals within the profession based on their racial identification and gender. If there is any occupation in which one would expect to see meaningful equality of opportunity and results, given the profession's lofty ideals and pronouncements, it should be the legal profession, but the reality is quite the contrary. In short, lawyers do not practice what they preach.

Part II explains the dissonance between the ideals and rhetoric espoused within the legal profession and the reality of practice through an analysis of group dynamics and the benefits associated with group membership. Building upon Richard McAdams's recent work in law and economics on relative preferences,(2) and on how intragroup and intergroup conflict are created,(3) Part II contends that lawyers as a group gain self-esteem and power vis-a-vis other groups with their visible and vocal commitment to liberal social issues. Conversely, however, lawyers qua lawyers are situated as individuals as part of the larger group and, as a result, gain intragroup status by reproducing existing racial dynamics by oppressing minorities and enforcing subordination.

Part III represents an explicit return to Critical Race Theory by merging insights gleaned from Part I to address and remedy the issues identified in Part II. In particular, Part III presents two dissimilar solutions to the dissonance inherent in the legal profession concerning the underrepresentation of minorities within its ranks. The first remedy suggested -- destabilizing racial identity -- represents an attempt to construct an intragroup identity as attorneys or members of the bar that trumps the intergroup conflict that is predicated on distinct and differing racial identities. The second remedy embraces an equality of result model rather than an equality of process model, and calls upon the profession to recognize that racial differences -- racial classifications and the identities they produce -- do exist among its members, but that the only way to eradicate the illegitimate results created by these differences(4) is to destabilize traditional notions of meritocracy.

In other words, Part III calls upon the legal profession to aggressively employ affirmative action to remedy the underrepresentation of attorneys at elite firms, notwithstanding the alleged causes of that underrepresentation. To situate this claim in the larger debate over the efficacy of affirmative action, Part III articulates a broad-based defense of affirmative action that is not limited to increasing the representation of minority lawyers at elite firms.

The first remedy suggested -- destabilizing existing racial identities -- is my ultimate goal and would obviate the need for affirmative action. Realistically, however, affirmative action is the more likely remedy given the intransigence of racial identification in contemporary American society and the difficult steps that would have to be taken in order to successfully destabilize racial identity.

I.

The racial composition of the legal profession and the identification of which and how many positions minority attorneys occupy within the legal profession may seem, at first glance, an odd topic to address. But this point of view demonstrates a problem that is quite understandable. The reader of this article is no doubt either a law student, lawyer, or law professor, and in this limited milieu, lawyers talking to other lawyers or law professors talking to other law professors, the existence of a nonlegal world in which law plays a symbolic and real role and in which the racial composition of the profession is viewed as a barometer of the profession's progress in racial relations is often ignored. How those outside the legal profession perceive those within the legal profession is, however, an important component of our legal system.

1. The Plight of Minorities in the Legal Profession

   The numbers are startling and conclusive. Minority attorneys are underrepresented in prestigious corporate law firms. Before turning to the numbers, however, it is important to note what this means for the state of the profession. The paucity of minority attorneys in large corporate law firms is important because of what these firms represent. The perception within the profession is that these larger firms represent the elite practitioners of the private practice bar. Employment by one of these firms indicates that the lawyer so employed is part of the legal elite.(5) Moreover these lawyers who practice in elite firms not only represent the elite of the profession, to a large degree they control the profession and its development.

   What this means for the profession is that, if it is true to its ideals as the protector and guarantor of individual freedoms and liberties,(6) then at least minority representation in the elite firms should be proportional to minority representation in the rest of the profession, unless there is a plausible explanation for their underrepresentation. In other words, if lawyers are committed to the advocacy of individual liberties, one would expect them to keep their own "house" in order. It would be hypocritical for elite lawyers as a group to "talk the talk without walking the walk." It would also be the height of hypocrisy for them to espouse one set of ideals while practicing something egregiously different.

   Underrepresentation, if demonstrable, means little if it is inconsequential or if there is a plausible explanation for it. If, for example, there are fewer minority attorneys practicing in Salt Lake City than there are in a comparably sized city, little information can be gleaned from that fact given the lack of minority residents in the city both to service and from whence to draw potential employees.(7) But the numbers do not lie. Minorities historically have been and continue to be severely underrepresented in these elite firms. In the most statistically valid survey to date of the career choices that lawyers make, Lewis Kornhauser and Richard Revesz conclude that minorities, that is, blacks and Latinos, are severely underrepresented in elite firms.(8)

   The [data] show[ ] that in 1981, while African-Americans and Latinos were 7.0% of the eligible pool, they constituted only 2.9% of the associates in elite law firms. This underrepresentation decreased slightly during the next decade. Between 1981 and 1991, the proportion of African-American and Latino associates in elite law firms increased by 48.2%. This increase was greater than the increase in the eligible pool . . . which rose only 24.3%. Nonetheless, in 1991, African-Americans and Latinos were still only 4.3% of associates at elite law firms, even though they comprised 8.7% of individuals graduating from law school between 1984 and 1990.

   As in the case of women, the underrepresentation was even starker among partners. African-Americans and Latinos constituted only 0.7% of the elite law firm partners in 1981 and 1.7% in 1991.

   . . . If the percentage of individuals in these groups among the attorneys promoted to partner in a given year is lower than their percentage among associates three to five years earlier, we deem these groups to be underrepresented among individuals promoted to partner. Between 1985 and 1987, 2.1% of new partners were African-American and Latino -- a figure lower than the 2.9% of associates in 1981 who were members of these groups. Similarly, between 1987 and 1989, 2.1% of new partners were African-American and Latino, even though this group comprised 3.1% of associates in 1984. This pattern was reversed between 1989 and 1991, when African-Americans and Latinos constituted 5.3% of the individuals promoted to partner, as compared with 3.0% of the associates in 1985.(9)

   Based on their analysis of the data, the authors conclude that blacks are overrepresented in not-for-profit jobs and considerably underrepresented in elite law firms, although that underrepresentation is decreasing in recent years.(10) More recent data reveal that the trend the authors noted for the period 1989-1991 was fleeting and impermanent. The trend, instead, shows increased minority hiring at the associate level, but with a significant attrition following hiring. Hence, current practices continue to produce a minuscule percentage of...