By James G. Leipold, Executive Director

NALP Bulletin, October 2020

In order to make sense of the world around us we tell ourselves stories — stories about our personal lives, our families, our communities, our jobs and our profession, and our country. The stories help us make sense of the complicated world around us. Sometimes the stories are private and sometimes they are public. Sometimes the stories are true but often they are not. Sometimes these stories help us sleep at night, and sometimes they keep us awake.

One of the stories we have told ourselves is that the legal profession has a fundamental commitment to diversity, equity, and inclusion, and that despite setbacks and hurdles, the profession has made slow and steady progress toward being a profession that is more inclusive of women and people of color. NALP has certainly contributed to that story. I have contributed to that story.

But numbers also tell stories. And those stories also haunt us. There are two sets of numbers that increasingly keep me awake at night.

One set of numbers that troubles me deeply is the gap in the rate that Black law school graduates secure first jobs in private practice compared to graduates who are white, Asian, or Latinx. For the Class of 2019 that gap was more than 12 percentage points in comparison to white and Latinx graduates and nearly 19 percentage points in comparison to Asian graduates (see Figure 1).

Figure 1. Percentage of Jobs Taken in Private Practice: Comparison by Race/Ethnicity, Class of 2019

The other set of numbers that tortures me is the partner numbers from the NALP Directory of Legal Employers. In 2019, less than two percent of partners were Black and fewer than one percent of partners were Black or Latinx women (see Figure 2).

How can that be? After all these years of earnest hard work by law firms to improve these numbers, why hasn't there been meaningful change and increased inclusion?

I have spent more than 16 years studying, analyzing, reporting on, and talking about NALP data on employment outcomes for law school graduates and NALP data on law firm lawyer diversity demographics, and whenever I show slides with these two sets of numbers on them I stumble a bit because the numbers are so shocking. I feel their impact on audiences when I share them because they too are shocked. They are shocked because the numbers are at odds with the story that we have told ourselves that the legal profession has a fundamental commitment to diversity and equity and that we have been making slow but steady progress toward that goal.

Following the murder of George Floyd in May, NALP committed to making greater efforts to support and promote the careers of Black law students and lawyers, and specifically to using NALP research to document and call out inequity in the profession. I take that commitment seriously. That means that we need to begin to tell different stories.

When I look at these numbers, it is hard for me not to conclude that we have prioritized outcomes for white people over Black people in the legal profession, that whether explicitly or implicitly, whether deliberately or inadvertently, there has been systemic preference and advantage for white law school graduates over Black law school graduates, and for white lawyers over Black lawyers. It is impossible for me to look at these data and not reach this conclusion. Indeed in 2020 it is hard to read the headlines in the American press week after week and not conclude that in the United States we have long prioritized white outcomes over Black outcomes in all facets of our society, and that prioritization is made chillingly manifest in higher education and the legal profession. That is the true story that we need to tell in this moment.

I am definitely in the "when times get tough, white people join book clubs" camp — guilty as charged, and I own that. My book club has been reading Begin Again, by Professor Eddie S. Glaude Jr. from Princeton University. He is the author of many works, including Democracy in Black, but Begin Again is about the work of James Baldwin and the lessons to be drawn from his work to help explain our current times. Reading Glaude's work on Baldwin has helped me understand more clearly and deeply than ever before that in America "white lives have always mattered more than the lives of others" and that the story that "America is fundamentally good and innocent" is belied by the history of "trauma that America has visited…on people of color both at home and abroad." Glaude writes:

When measured against our actions, the story we have told ourselves about America being a divinely sanctioned nation called to be a beacon of light and a moral force in the world is a lie…. The lie is the story that warps reality in this country, which means that resisting it involves telling in each moment a truer story, one that casts the lie into relief, showing it for what it is.
— Glaude Jr., Eddie S. Begin Again: James Baldwin's America and Its Urgent Lessons for Our Own, New York, Crown (Random House), 2020

I would suggest that much the same thing can be said about the legal profession. When measured against our actions, the story we have told ourselves about the legal profession being committed to greater diversity and equity is a lie. The legal profession has not sought to exclude Black lives, but the profession has not prioritized Black outcomes, has certainly not prioritized Black outcomes over white outcomes. White-led institutions have been the gatekeepers to the profession, and those institutions have at every turn set up gates that prioritize success for white people. Through our law school admission process and its over-reliance on standardized tests, through our misguided notion of merit, through our reliance throughout the profession on reputational capital and the rank-ordered stature of institutions and people, through the bar exam and licensing rules and procedures, and through our work allocation, evaluation, training, career development, and advancement systems, we have prioritized white outcomes over the outcomes of people of color, just as we have prioritized the outcomes of men over women. And we are all complicit in those wrongs.

How do we begin to tell a truer story? How do we get out from under the lies we have told ourselves about the profession's commitment to diversity and inclusion? Glaude draws not only on the work of Baldwin, but also on the work of Martin Luther King Jr. and Bryan Stevenson, among many others, each of whom has believed that we need not be bound by the lies of our past, each of whom has seen clearly a way to begin again, the possibility of a new beginning that is predicated on an admission of complicity in the wrongs that have been committed, and a commitment to never commit those wrongs again.

I want to argue that in order to make real change, in order to break the cycle of prioritizing white outcomes over the outcomes for people of color, but particularly of prioritizing white outcomes over Black outcomes, the legal profession needs to undergo its own process of truth and reconciliation. It is a process that has been undertaken in South Africa, Canada, and Australia, among other countries, but never in the United States, though individual institutions in the U.S., like Georgetown University, have attempted to set that process in motion. In Georgetown's case, the university has tried to engage in truth-telling about its direct ties to slavery and the sale of slaves to finance the school's operations and has set up some measure of restitution and reparation.

What James Baldwin understood deeply, and what Glaude helps us see as perhaps Baldwin's most important insight, is that living a lie corrupts the soul. Living a lie corrupts the soul of an individual person just as it corrupts the soul of a nation, and it most certainly corrupts the soul of a profession. But we need not be trapped in our lie forever. The act of owning and naming the lie, and repudiating it, can help to set us free. The legal profession has not been deeply committed to diversity, equity, and inclusion. The numbers tell us that is so. But it could be, particularly if we start telling the truth about our past.

In his conclusion to Begin Again, Glaude writes, "When we imprison our fellows in categories that cut off their humanity from our own, we end up imprisoning ourselves…. We have to look back and tell a different story, without the crutch of our myths and legends." I encourage all of us to begin that process. In the final pages of his book Glaude writes, "Salvation is found there: in accepting the beauty and ugliness of who we are in our most vulnerable moments in communion with each other. There, in love, a profound mutuality develops and becomes the basis for genuine democratic community where we all can flourish, if we so choose."