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
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.