The Underrepresentation of Minorities in the Legal Profession: A Critical Race Theorist’s Perspective

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, in the legal profession. After demonstrafing 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, and on how intragroup and intergroup conflict are created, 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 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 broadbased 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.