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Hey, where did the brothers go?

It is no secret that Black men – the most vulnerable, the most at-risk segment of the population, and sadly, often the most marginalized, scapegoated, neglected and unwelcome of all Americans – are in crisis. That they are overrepresented in the nation's jails and prisons is well documented. In fact, more are incarcerated than are in college. It is troubling, to be sure, though perhaps not too surprising that Black men are underrepresented in the legal profession.

But to make things worse, the number of Black male lawyers is dwindling, and we should all take notice.

Think of the invaluable contributions of individuals such as Judge Thurgood Marshall, Judge William Henry Hastie, Charles Hamilton Houston, and Johnnie Cochran. Armed with a sense of justice that was informed by their experiences in society, these men helped to shape the legal landscape. What of the achievements of the African American lawyers who will never be? What of the luminaries who could have been, but who we will never know because they could not make it out of the gate?

It is easy to look at the current situation and to say merely that Black men simply do not have what it takes to succeed and lack the motivation, intellectual firepower and tools that the rest of society possesses. And surely there are solutions that African Americans can and must develop themselves for the myriad challenges they face, educational achievement being one of them. But that does not address the challenges faced by Black men who have "made it," who have achieved and excelled academically, yet still cannot get their heads above water. We need to look at institutional roadblocks, the obstacles that make it easier for a white man with a criminal record and a high school diploma to get a job than a Black man with a degree and no criminal record.

In keeping with one of the primary goals of the Color of Law column, I will continue to focus on the path less traveled, and seek to examine the ways in which society's institutions - sometimes considered sacrosanct, immune from scrutiny and beyond reproach - are standing in the way of progress, and are acting as the proverbial foot on the neck of the underdog. With these institutions come, of course, vested interests who stand to lose as a result of any changes in the status quo.

In this case, let's examine the death of affirmative action in the admissions process.

As was reported recently in the New York Law Journal, although there has been, since 1995, a 10 percent increase in the enrollment of law student of color, the number of African Americans attending law schools has been low. In the 2003-2004 school year, the percentage of African American law school students reached a 13-year low. And in 2005, Black enrollment dropped a full 13 percent.

To make things even worse, Black men are outnumbered by Black women in law school 2 to 1.

Some observers, such as Elliott Dawes, University Director for the Black Male Initiative at the City University of New York, have taken a critical look at the law school admissions process and the ways in which it is limiting the number of qualified Blacks, particularly Black men, in the legal profession.

Part of the problem is the absurd and obscene over-reliance by law school admissions departments throughout the nation on the Law School Admissions Test, or LSAT. Some sectors of society question the LSAT's purpose and utility, and organizations such as the Society of American Law Teachers provide a thoughtful critical analysis of the exam, yet year after year this rigged test is used more and more to determine who is worthy to attend law school. Law schools, eager to make their way up the U.S. News and World Report rankings, and too lazy to take the time to engage in a careful assessment of every individual application, hike up their minimum required LSAT score. Even the creators of the LSAT did not intend such an over-reliance on the test. Test-prep companies, whose very existence depends upon the perpetuation of America's "testocracy", bilk thousands of dollars from those who can afford their costly classes.

An exam without a lick of law in it, the best that the LSAT can determine is how well a student does on the LSAT. One thing is for sure: African American students, on average, do not score as high on the LSAT as their white counterparts with the same GPAs and educational achievement. This means that Black men with excellent undergraduate academic credentials will not even make it out of the gate because they fail to meet a law school's cutoff score. The result is a re-segregation of the law schools.

And a justice system that all too eagerly warehouses Black men in America's dungeons, gulags, labor camps and death chambers, at the same time maintaining an institutional framework that renders Black male lawyers an endangered species, is suspect.

This all leads to the question of what defines merit. Opponents of affirmative action would have us believe that merit can be distilled into a single score or number. They are having their way in some parts of the country, through a concerted effort by conservatives who hope to eliminate diversity, and who want go back to the "good ol' days." As a result, some states have eliminated affirmative action in public college and graduate school admissions. Relying on the assumption of white male entitlement, as well as contrived anecdotal evidence - such as the child of Bill Cosby who was given preference over a white steelworker's son, or the qualified white applicant who was denied a spot because an unqualified Latina applicant with lower scores was admitted - angry and misinformed white voters have outlawed racial and gender diversity in admissions.

The fact is that no one is entitled, as a birthright, to attend any higher educational institution. There was a time when the old boys' network ruled the day, and people of color and women witnessed their wholesale exclusion from the process. Now, these sectors of society have returned to be counted. The reality is that thousands upon thousands of students may apply to any given school, and the school (particularly more competitive programs) may have seats for as few (or fewer) as a tenth of the applicants. The majority of the applicant pool certainly may very well be qualified, yet with great certainty, the majority of the applicants will be denied admission. The task of an institution of higher learning is to select a class of qualified individuals, based on quantitative and qualitative criteria, with a diversity of backgrounds, talents, skills and interests, and high potential to contribute to society. But some institutions have begun to sleep on this task.

Social movements are the key to reform. If we are to see any progress in this crisis of Black men in the law, education, or any other sector of society, we must begin to examine the institutions that impede progress, and then chip away at them and rebuild them. It is necessary, but it will not be easy, as those who have built the system will not hand over their tools to the wrecking crew.

BC Columnist David A. Love is an attorney based in Philadelphia, and a contributor to the Progressive Media Project and McClatchy-Tribune News Service. He contributed to the book, States of Confinement: Policing, Detention and Prisons (St. Martin's Press, 2000). Love is a former spokesperson for the Amnesty International UK National Speakers Tour, and organized the first national police brutality conference as a staff member with the New York-based Center for Constitutional Rights. He served as a law clerk to two Black federal judges. Click here to contact Mr. Love.