Are We Still Making Noise?

The Backlash to Black Lives Matter and Its Effects on the Legal Profession

By Alison Ashe-Card, Molly Stafford, and Nicole Netkin-Collins

NALP Bulletin+
December 2021




Last year, following the murders of George Floyd, Breonna Taylor, and Ahmaud Arbery and the resulting Black Lives Matter protests, we wrote a three-part series for NALP on dismantling racism and white supremacy in the legal profession. The first article outlined the need to “do the work” of antiracism on individual and institutional levels, and the importance of “finding your lane” to do the work (i.e., interrupting racist jokes, marching, becoming civically engaged, or even creating artwork). It closed with the following words from John Lewis: “Do not get lost in a sea of despair. Be hopeful, be optimistic. Our struggle is not the struggle of a day, a week, a month, or a year, it is the struggle of a lifetime. Never, ever be afraid to make some noise and get in good trouble, necessary trouble.”

The second article highlighted the costs of failing to dismantle racism and white supremacy in the legal profession — particularly the costs borne by Black, Indigenous, and People of Color (BIPOC) law students and attorneys — and the series ended with examples of the work that is being done to create a more diverse, equitable, and inclusive profession. (Note: A list of resources at the end of this article includes all of the referenced sources.)

But, as John Lewis told us, this is the struggle of a lifetime, not just this past year. Diverse students and lawyers continue to experience disparate outcomes in the legal profession as a result of the effects of racism and the persistence of professional norms that prioritize whiteness either explicitly or implicitly.

As a result, this will be the first in another three-part series addressing the need to continue working toward dismantling white supremacy and systemic racism in the legal profession. This trilogy will focus first on the ongoing experiences of BIPOC law students and lawyers and an obstacle that, albeit predictable, is a hurdle to forward movement: the decline in support for Black Lives Matter among white individuals. The next article will focus on the importance of self-care for BIPOC individuals and the series will conclude with an analysis of what post-pandemic “back to normal” means for BIPOC law students and lawyers.


Experiences of BIPOC Law Students and Attorneys

In February 2020, the Law School Survey of Student Engagement (LSSSE) Module on Diversity and Inclusiveness was launched for the first time since the organization began collecting data in 2004 about the law student experience. At the time, no one could have expected what was to come — a global pandemic that would disproportionately affect communities of color, prolonged virtual instruction, and the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, and many others that would lead to protests against ongoing anti-Black violence.

The questions in the module explore students’ exposure to inclusive teaching practices and intercultural learning; perceptions of institutional values and commitment regarding diversity; and participation in diversity-related programming and coursework. The report presents data on how diversity in law school can prepare students for the effective practice of law upon graduation. This begins with a foundational requirement that schools create a supportive environment for all students. Without institutional support, students from different backgrounds may not see themselves as valuable partners for building an inclusive community. Equally important, students who feel a strong sense of belonging are more likely to achieve academic and professional success.

The results of the survey reveal that many students of color do not see their campus as being supportive of racial/ethnic differences. Almost a quarter (23%) of Black law students nationwide say their schools do “very little” to create a supportive environment for race/ethnicity, compared to just 6.8% of white students. At the opposite end of the spectrum, 32% of white students believe their schools do “very much” to support racial/ethnic diversity, compared to only 18% of their Black classmates.

Even more dramatic are intersectional identity findings, as 26% of Black women — more than any other raceXgender (intersectional) group — see their schools doing “very little” to create an environment that is supportive of different racial/ethnic identities, as compared to just 5.5% of white men (while 72% of white men believe their schools do “quite a bit” or “very much” in this arena). Given the relative lack of support they see for racial/ethnic and gender diversity on campus, it is not surprising that women and students of color also believe their schools are less invested in them as individuals.

It also should come as no surprise, then, that disparate outcomes in the legal profession persist. For example, according to the NALP survey for the Class of 2020, white law school graduates had the highest overall employment rate (90.1%), while Native Hawaiian or other Pacific Islander graduates and Black or African American graduates had the lowest employment rates (81.5% and 83.8%). White graduates had the highest rate of employment in bar passage required/anticipated jobs (78.0%), while the rate was 21 percentage points lower for Native Hawaiian or other Pacific Islander graduates (56.8%) and nearly 16 percentage points lower for Black or African American graduates (62.5%).


Law School and Firm Responses to BLM

Many law schools and law firms have professed a commitment to improving representation and retention of Black law students and lawyers through diversity programs and initiatives. In the aftermath of George Floyd’s death, the legal community had an opportunity to reflect on the impact of its diversity programs and its responsibility to ensure racial equality.

Law school deans from across the country issued statements of solidarity with the Black community following the murder of George Floyd. In those statements, they pledged to look inward to see the ways in which their institutions fail to actively work against racism in the law and inside their own buildings. Five Black female deans founded the Law Deans Antiracist Clearinghouse Project, which provides antiracism resources and information. But declaring a commitment and living out that commitment are very different. As a result, law schools have examined courses and curricula to determine what changes need to be made to address issues of racism and bias in the United States.

The USC Gould School of Law is the first of the top 25 law schools in the nation to add a required course on race and racism to its curriculum beginning with the Class of 2024. “The Black Lives Matter protests as well as the deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, and many others all had an impact on our students and faculty. This moment requires that we ask about our obligations to the legal community, to society, and to the world writ large,” said Professor and Vice Dean Franita Tolson, who co-chaired the Academic Affairs subcommittee charged with developing the course. “The course will help students recognize that their obligation as lawyers, regardless of their specialty, is to understand that law does not always operate equally — that race is an enduring part of the legal profession and our everyday lives.”

The way in which law firms talk about social justice and racial inequity has also changed. Law firms have long invested money and resources in diversity programming. But now, many law firms are taking an outward-facing stance on questions surrounding racial inequity and social justice, and they are voicing support for BIPOC lawyers and law students in a way they have not done in the past.

Kirkland & Ellis committed $5 million over five years to various organizations; Morgan, Lewis & Bockius donated over $1 million to social justice initiatives; Cooley donated $750,000 to the Equal Justice Initiative; Latham & Watkins donated $500,000 to organizations including the Equal Justice Initiative and the NAACP Legal Defense and Educational Fund. Several law firms also worked to expand their pro bono programs to address racial injustice issues. Others added diversity, equity, and inclusion involvement to attorneys’ billable hour requirements.

Moreover, in August 2020, the Law Firm Antiracism Alliance (LFAA) was formed, which now has 300 participating law firms across the nation. LFAA aspires to encourage law firms to continue their pro bono work in support of individuals who have experienced racism, while expanding the pro bono work that law firms do to regularly and intentionally change the laws that create the conditions that allow racism to go unchecked.

“There is a sense that, finally, our law firms recognize the experiences of Black people in this country and, in law firms and in the legal profession in general, that experience has been different,” said Grace Speights, co-leader of Morgan Lewis’ social justice task force, Mobilizing for Equality. “People are willing and comfortable now talking about almost everything. And I think that’s a good thing. We’ve had some discussions that, even three years ago, we might not have talked about,” Speights added. Many see this shift in attitude as the bridging of the cultural gap between attorneys of color and their white-majority law firms.


Black Lives Matter Backlash and Apathy

“When Black people are in pain, white people just join book clubs.”

This is the title of an article published by The Washington Post on June 11, 2020, that brings into focus the topic of this article. The author, freelance writer Tre Johnson, goes on to identify that,

. . . when things get real — really murderous, really tragic, really violent or aggressive — my white, liberal, educated friends already know what to do. What they do is read. And talk about their reading. What they do is listen. And talk about how they listened. What they do is never enough . . . . Because I’ve been here before, I know what happens next. In a handful of Sundays, my social media feeds will no longer have my white allies “This”-ing, or unpacking their whiteness or privilege . . . . It is hard and harmful to know that all of this keeps them in a comfortable place, even if doing just a little feels like a reach when the Race Alarms are sounded.

Since then, the data has proven this point. For example, after a surge in support of Black Lives Matter last year, that support — among white Americans — has declined and is even slightly lower than before the murder of George Floyd.

In the summer of 2020,  support among Americans for racial justice was at an all-time high. Corporations and universities committed to becoming “antiracist,” books like Me and White Supremacy were flying off the shelves. Support for the Black Lives Matter movement rose to approximately 67%. High-profile celebrities and corporations who were previously silent about social justice began to use their voices, money, and platforms for change.

But since that time, support of the Black Lives Matter movement has declined by 10%, according to several Pew Research surveys. The surveys have shown that in June 2020, a majority of white adults (60%) said they supported the movement at least somewhat, whereas in September of the same year, fewer than half (47%) expressed support. The share of Hispanic adults who support the movement has decreased 11 percentage points, from 77% in June to 66% just four months later. Without major protests making front-page news, experts say, support for the Black Lives Matter movement has receded. While African Americans still support the movement and some white allies remain steadfast, the less committed have retreated to the sidelines, noted Pearl Dowe, a professor of African American studies and political science at Emory University in Atlanta.

Companies pledged $50 billion to racial equity in 2020, and according to a study by Creative Investment Research, only $250 million of that money has been spent or even devoted to a specific initiative. Beyond the Creative Investment Research study, there are no formal mechanisms in place to track the progress of this initiative. Many organizations have slowed down and gotten quieter with their anti-racism statements, pledges, and commitments.

“What tends to happen is that in these moments, the idea of allyship becomes a cliché [as the amount of work necessary to solve racism becomes apparent],” Dowe said. “And the deeper conversations about what allyship and alliance really is, don’t happen.”

Another factor beyond apathy is actual backlash. Joe Flynn, an African American studies professor at Northern Illinois University, describes this backlash to the movement as including “...derision of ‘woke culture,’ the conflating of Black Lives Matter with antifa, and condemnation of ‘critical race theory,’” which is an academic theory that examines the intersection of race, culture, and law. This was predictable. Social movements in the U.S. are often — if not always — followed by a backlash. Backlashes occurred during and after the Reconstruction era (1865-1877), the Civil Rights movement (1950s and 60s), and the Women’s movement (1960s and 70s). For example, Cornell History Professor Lawrence B. Glickman wrote in The Atlantic,

“During Reconstruction, opponents of the black-freedom struggle deployed preemptive, apocalyptic, slippery-slope arguments that have remained enduring features of backlash politics up to the present. They treated federal support for African American civil rights, economic, and social equality — however delayed, reluctant, underfunded, and incomplete it may have been — as a cataclysmic overreaction and framed it as a far more dangerous threat to liberty than the injustice it was designed to address.”

Glickman goes on to state, “And the backlashes are powerful not only for the fury they represent, but in the fear they instill in political leaders, even progressives, who hesitate to push things ‘too far.’


Conclusion

So what can we do about this? For starters, as stated in a Teen Vogue article in July 2020 that predicted this state of affairs, “[a]cknowledging how this phenomenon [white backlash] has played out throughout our nation’s history is a crucial first step to suppressing it. Let’s hope all of the books by Black authors focused on racial issues, which topped best-seller lists . . . are actually being read.”

In September 2020, we quoted Layla Saad as we kicked off our first three-part series and her words bear repeating, “it is important to understand that this is deep, raw, challenging, personal, heartbreaking, and heart-expanding work [the work of anti-racism]. . . [but] if we are all committed to doing the work that is ours to do, we have a chance of creating a world and way of living that are closer to what we all desire for ourselves and one another.”

At the time, we encouraged NALP members — and challenged ourselves — to engage in self-reflection and to “find your lane.” Since then, new ideas and initiatives have taken hold in the legal profession; anti-racism work is occurring in innovative and different ways than in the past. The work that we are witnessing — some of which we outlined here — encourages us to believe that change, albeit achingly slow, is happening.

But for change to happen, particularly at a faster pace, we have to keep at it. Book clubs, statements, pledges, etc., are just the starting point. We need to wrestle with some uncomfortable truths: BIPOC students experience less support on law school campuses, disparate employment outcomes persist with regard to race/ethnicity (and other intersecting identities), and there is a lot more we can do — individually and within our institutions — to realize a more diverse, equitable, and inclusive profession. Let’s continue to keep working to dismantle white supremacy in the legal profession; let’s go “make some noise and get in good trouble, necessary trouble.”


Resources

Law School Survey of Student Engagement (LSSSE), Diversity & Exclusion 2020 Annual Survey Results.

The Association of American Law Schools, Law Deans Antiracist Clearinghouse Project.

USC Gould, “USC Gould to offer unique required course focusing on race in legal system,” Leslie Ridgeway, February 4, 2021.

Vault Law Editors, “Law Firm & Law School Responses to the Black Lives Matter Movement,” June 10, 2020.

The American Lawyer, “George Floyd’s Death Ushered in a New Era of Law Firm Activism and There’s No Going Back,” Dylan Jackson, May 25, 2021.

The Washington Post, “When Black people are in pain, white people just join book clubs,” Tre Johnson, June 11, 2020.

The Atlantic, “How White Backlash Controls American Progress,” Lawrence Glickman, May 22, 2020.

Teen Vogue, “White Backlash Is the Inevitable Response to Black Progress in the United States,” Gennette Cordova, July 31, 2020.

Pew Research Center, “Support for Black Lives Matter declined after George Floyd protests, but has remained unchanged since,” Juliana Menasce Horowitz, September 27, 2021.

The New York Times, “Support for Black Lives Matter Surged Last Year. Did It Last?,” Jennifer Chudy and Hakeem Jefferson, May 22, 2021.

Pew Research Center, “Support for Black Lives Matter has decreased since June but remains strong among Black Americans,” Deja Thomas and Juliana Menasce Horowitz, September 15, 2020.

NALP, Jobs & JDs: Employment and Salaries of New Law Graduates - Class of 2020, www.nalp.org/classof2020.

Alison Ashe-Card, Molly Stafford, Nicole Netkin-Collins, “Making Noise: Doing Our Part to Dismantle Racism and White Supremacy in the Legal Profession,” NALP Bulletin, September 2020.

Alison Ashe-Card, Molly Stafford, Nicole Netkin-Collins, “Not Making Enough Noise: The Costs of Failing to Dismantle Racism and White Supremacy in the Legal Profession,” NALP Bulletin, January 2021.

Alison Ashe-Card, Molly Stafford, Nicole Netkin-Collins, “Making Noise: The Work Underway and a Call to Action (Again),” NALP Bulletin, April 2021.


This article series was submitted on behalf of the NALP Diversity, Equity & Inclusion Section.

Alison Ashe-Card is the Associate Director, Diversity & Inclusion in the Office of Career and Professional Development at Wake Forest University School of Law and serves on NALP’s Board of Directors.

Molly Stafford is the Assistant Dean of Career Development & External Relations at the University of the Pacific, McGeorge School of Law and serves on NALP’s Regional Leadership Council and as the Chair of the Task Force on Supporting Gender Non-Binary Individuals in the Legal Profession.

Nicole Netkin-Collins is the Director for Law Firms at the University of Colorado Law School and serves as a member of the Task Force on Supporting Gender Non-Binary Individuals in the Legal Profession.

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