[Cross-post from The Bencher, American Inns of Court]
By Kevin R. Johnson
As anyone understands, the global pandemic has greatly complicated legal education and the practice of law. As a law school dean, I can attest to the fact that just keeping law schools operating over the last two years has been no easy feat. As the pandemic shows nascent signs of subsiding, law schools still face roughly the same challenges that existed before the shutdown of U.S. society in 2020. One of the most formidable challenges no doubt will continue to be legal education’s pursuit of diversity, equity, and inclusion.
The benefits of student and faculty diversity are well-known. For years, law schools have sought to diversify their student bodies. The ultimate hope has been to diversify the legal profession. Despite those efforts, attorneys of color remain sorely underrepresented among attorneys nationwide. In addition, law schools have been called upon to add to the racial and gender diversity of their faculties. Hiring and retention of faculty of color has changed a bit, but not that much in the last thirty years.
Put simply, progress on improving student and faculty diversity has been slow, uneven, and at times downright frustrating. Unfortunately, the future challenges facing law schools in pursuit of the goal of diversity, equity, and inclusion appear to be just as daunting as they have ever been. Fissures to the fabric of the community caused by stresses and strains of the pandemic have made achieving diversity goals even more challenging than they once were. The pandemic has had especially adverse impacts–economically, health-wise and in other ways–on people of color. Moreover, many observers predict that the Supreme Court will put an end to any consideration of race in law school admissions in Students for Admissions Inc. v. President & Fellows of Harvard College. The end of affirmative action would restrict efforts to pursue law student diversity in the post-pandemic world.
Student Diversity and Calls for the Teaching of Racial Justice
For years, law schools have made efforts to increase the diversity of law student bodies. The goal has been to produce a corps of lawyers that looks more like the overall population than it has for decades. Diversity among students facilitates student learning outcomes by allowing students to hear from a variety of different perspectives in the classroom. Pressures for increased diversity have escalated over time and will likely remain for the foreseeable future.
The Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003) upheld the University of Michigan law school’s carefully calibrated admissions system that considered race as one factor among many in the admissions process. For the last twenty years, many law schools have relied on Grutter in fashioning admissions systems and pursuing affirmative action to diversify law student bodies. That may cease with the Supreme Court’s re-assessment of the constitutionality of such programs in a case argued at the end of October 2022. The demise of affirmative action would require considerable soul searching, restructuring, and rethinking law school admissions by law schools.
The American Bar Association (ABA) today considers student diversity in the accreditation of law schools. In addition, the ABA House of Delegates earlier this year voted to require law schools “provide education to law students on bias, cross-cultural competency, and racism” at “the start of the program of legal education” and “at least once again before graduation.” (Amended ABA Standard 303). The ABA standards make clear that racism and racial discrimination must be a part of the law school curriculum for all students as well.
Employers of all types also demand that law schools enroll more diverse law student bodies. That in no small part mirrors demands from clients that employers staff their matters with a diverse staff of attorneys. Law schools have responded to employers’ demands. Although progress has been made, much work remains.
Recent highly publicized deaths of African Americans at the hands of police have generated controversy. To the surprise of many, much discussion has focused on the elimination of systemic racism from U.S. social life. Students are pressuring law schools to respond by teaching students more about racial justice. They also consistently have sought more diverse faculties and student bodies. Such student advocacy will likely continue in the future. Some schools also have asked that issues of racial justice be better integrated into the law school curriculum.
Resources are available to law schools seeking to increase the teaching of racial justice and promote a more inclusive law school environment. For example, a group of African American women law school deans started the Law Deans Antiracist Clearinghouse Project, which includes resources for law schools interested in embracing an anti-racism program. Anti-racist pedagogy, diversity and implicit bias training, and other programs (as well as consultants to advise law schools) are readily available.
As law schools seek to diversify student bodies, efforts at retention are important. Academic support and other programs help to integrate and include first-generation law students and students of color. Such programs represent a marked improvement over the prevailing “sink or swim” approach that dominated how law schools traditionally responded to student learning and the stresses of legal education. Such an approach is starkly out of step with modern DEI sensibilities and does a serious disservice to students of color and first-generation law students.
Importantly, Inn of Court chapters may help promote the diversification of the legal profession. Student members gain measurably from networking with, and mentoring from, judges and lawyers. Inn chapters should continue to consciously strive to ensure that their student members, who gain from networking and mentoring, come from a diverse cross-section of the law student community. Building a pipeline into the legal profession can be effective, rewarding, and fulfilling.
Faculty Diversity
A diverse law faculty also makes it easier for law schools to recruit and retain diverse student bodies. A diverse law student body understandably does not want to learn from predominantly white faculties. With role models at the front of the classroom, students gain from seeing teachers who look like them. The days of the patrician (and entirely Socratic) Professor Kingsfield of The Paper Chase are long gone. Law schools have stepped up to the challenge and committed themselves to changing their hiring.
As I have written (How and Why We Built a Majority/Minority Faculty, Chronicle of Higher Education, July 24, 2016), law schools must act intentionally if they hope to hire more women and people of color faculty members. Law schools often long for stratospheric credentials in law professor candidates, such as a prized clerkship with a Supreme Court justice and grades at the very top of the class. Besides the fact that these credentials might not be a good measure of law professor potential, relatively few people of color satisfy these elite credential demands, which makes diversifying law faculties a task easier said than done. The number of faculty of color has stabilized and remains smaller than one would hope. Nonetheless, there here have been improvements. Perhaps most notably, the last few years have seen a marked increase in the number of women of color assuming deanships at law schools.
Diverse faculties may bring diverse perspectives to the classroom, including the teaching of Critical Race Theory (CRT). As mentioned previously, that is precisely what students are demanding. Although controversial at its birth, CRT now is taught in law schools across the country and views law as part of the system of racism that persists in the modern United States.
Future DEI Challenges
The pandemic has hindered diversity, equity, and inclusion efforts by law schools. With remote instruction teaching over much of the pandemic, there was less informal, in-person interaction between students and professors. For similar reasons, law schools held fewer in-person open houses for prospective law students. Outreach programs conducted virtually in all likelihood are not as effective as in-person programs.
Moreover, maintaining a sense of community, which is especially important in retaining and ensuring the success of students of color and first-generation students, proved difficult in a fractured remote or hybrid environment. During the pandemic, student organizations understandably put almost all in-person activities on hold, with the lack of a sense of community provided by such events missed especially by students of color.
If the Supreme Court ends race-conscious affirmative action, law schools will need to engage in much introspection and adaptation. Examples of race-neutral means to increase the diversity of student bodies do exist. In California, Proposition 209, passed by the voters in 1996, ended affirmative action at public colleges and universities in the Golden State. Outreach programs, stepped up recruiting of applicants, and similar measures have enjoyed a degree of success in ensuring diverse student bodies. Law schools across the nation can learn from the efforts in the state’s public law schools to continue to enroll diverse student bodies.
Efforts to build a community devoted to diversity, equity, and inclusion are by necessity a work in progress. There are no quick fixes or easy answers. Dedication, vigilance, and simple hard work are essential. To improve, law schools must regularly consider and evaluate how they might best promote a positive climate for all students.
DEI Efforts at UC Davis Law
The UC Davis School of Law is proud of its diversity, equity, and inclusion (DEI) achievements. They include a “majority-minority” faculty and student body, a program supporting first-generation students, and extensive wellness programing (including a trained on-site psychological counselor). The school requires implicit bias training for first-year students and annually offers a social justice-minded community “book read” and a “Critical Perspectives” lecture series organized around the first-year curriculum presented by the Aoki Center for Critical Race and Nation Studies. This year, the community focused on the book Defund Fear: Safety Without Policing, Prisons, and Punishment (Zach Norris, 2020), which advocates reform of the criminal justice system.
In 2021, the School of Law added a DEI fellow, a position that was transformed into a director of law school DEI programs. The new position provides students a clear path for registering concerns about any and all law school climate issues and develops innovative DEI and community-building programming. At the same time, the law school continues to strive to integrate DEI sensibilities into every office in the law school, from admissions to faculty appointments to career service, and financial aid.
As protests over police brutality and systemic racism have swept the nation, UC Davis School of Law reaffirmed its commitment to racial justice. For three years running, the law school has offered a Racial Justice Speaker Series examining some of the most urgent racial justice issues facing our nation and world today. The series has gathered leading voices on civil rights, criminal justice, and civic and governmental responsibility to inform, enlighten, and–most important–engage in meaningful conversation with our community and the public.
In 2021/22, as part of the continuing efforts in the pursuit of ensuring diversity, equity and inclusion, two law school committees completed reports addressing matters ranging from curriculum reform to student recruitment to DEI training for all.
The school created a diversity, equity, and inclusion committee of staff, students, and alumni to prepare a strategic plan and recommendations for DEI measures. At the end of the 2021/22 academic year, the DEI Committee released its inaugural strategic plan. The plan urges that, among other things, the law school continue to:
1. Cultivate an inclusive atmosphere and sense of belonging;
2. Support community mental health;
3. Continue to recruit diverse staff members and students; and
4. Develop and provide more resources to students from lower-income backgrounds.
In addition, the law school’s Educational Policy Committee, composed of faculty and students, suggested a series of initiatives highlighted by a new graduation requirement that every law student complete a course touching on racial justice. The committee’s recommendations, which the faculty unanimously approved, also include the following:
1. The first year Intro Week anti-bias and sensitivity training be retained and potentially expanded and improved;
2. Further steps be taken to add critical and antiracist perspectives to the 1L curriculum;
3. The seminars for externships and clinicals offer a session on bias, cross-cultural competency, and racism; and
4. Opportunities for faculty training on DEI-related matters be explored and expanded and that each faculty member commit to a training in 2022-23.
Conclusion
In certain respects, the stars are in alignment with the collective view of the importance of DEI matters in legal education. Law schools are responding to employer, student, and ABA concerns with DEI. The pandemic has made achieving DEI goals all the more challenging. More work is needed and more undoubtedly is coming.
