Document Type

Article

Publication Title

University of Toledo Law Review

Abstract

Diversity in the legal profession matters. It helps legitimize our legal system, giving everyone confidence that they will be treated fairly. Diverse legal teams make it more likely that the team will understand different perspectives and avoid “group think.” Having diverse groups make, enforce, and interpret laws leads to better outcomes. And yet, the legal profession is one of the least diverse in the country. The vast majority of lawyers are White men even though women constitute half of the population and about 40% of the U.S. population is not White. The percentage of Black lawyers has remained virtually unchanged in the last decade. Demographics besides race and gender are also telling. For example, only about one of every four law students are first-generation college students as compared to over 50% of undergraduate students. Law schools must redouble their efforts, particularly after the Supreme Court's decision in Students for Fair Admissions, Inc. v. Harvard and University of North Carolina and anti-diversity, equity, and inclusion (“DEI”) laws in several states, to prevent falling further behind.

This Essay proceeds in four parts. Part I seeks to address one argument made by anti-DEI activists who claim that diversity efforts are discriminatory because they are rooted in equity, which they see as incompatible with equality, which is what the law requires. Part II explores the idea that equality must include equal opportunity, given that a person's value largely depends on their family lineage. Part III provides a few suggestions for neutralizing the accident of our births, where advantage--and disadvantage--are meted out based largely on the families we are born into. Part III also describes two pipeline initiatives that the University of Tennessee College of Law is undertaking to help diversify law school and the legal profession. Part IV recognizes the role that public and private virtue play in diversity efforts.

We continue to fall short of our country's ideals. “Our nation still works to secure, in its laws and culture, the respect for all persons our founding convictions require.” The Black population is underrepresented in the legal profession. Even though about 14.2% of the U.S. population is comprised of Black people, only about 5% of lawyers are Black. Hispanic people are also underrepresented in the legal profession. In 2022, approximately 5.8% of lawyers were Hispanic whereas Hispanic people comprise 18.5% of the U.S. population. Part of the explanation for these disparities could be underperformance on the LSAT entrance exam and lower law school admission rates. Those disparities, in turn, might be explained by disadvantages that create opportunity gaps. Treating people equally in a country where the destinies of children are largely determined by the accident of their births, coupled with unequal public school funding, and a huge wealth and income gap, hardly seems equitable. Law schools should act to fix the leaky talent pipeline to ensure underrepresented students are exposed to law school and the legal profession and that interested students receive appropriate mentoring and skill-building to be successful in law school and beyond. The legal profession, and the legal system more broadly, depend on it.

Publication Date

Winter 2024

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