Goal IX Newsletter

Fall 2005, Volume 11, Number 1

Moving Mountains: California's Latest Quake in the Legal World: by law students and a devoted professor

by Diane L. Abraham, Adj. Professor, U.C. Berkeley, (Boalt Hall) School of Law, and the students of Boalt Hall's Rhetoric of Race & Gender, Spring Semester 2005

The Mountains and the Movers

Now in its second year, and soon to be introduced at the Richardson School of Law, University of Hawaii, "The Rhetoric of Race & Gender" is a course at the University of California, Berkeley (Boalt Hall) School of Law that takes a frank, honest approach at diversity in the profession from a practitioner's standpoint. The students look at diversity (or the lack thereof) in law firms of various sizes and practice areas, the courtroom, bar associations, and of course, law school. Being non-theoretical, the 'reality' factor abounds, addressing recurring situations of bias within the contours of the multiple entities of the profession, and looking at realistic solutions.

So, let's get real. Does the bar exam really prepare our profession to practice law? Are lawyers culturally, linguistically and ethnically competent to deal with clients who wear a different face? The resounding answer is "NO." The Bar needs substantial updating. The last hurdle through entry into the profession in any jurisdiction is the Bar, which needs revision to include issues of diversity, so that the legal community can truly represent the society in which it operates. As professor of the Rhetoric of Race & Gender, I am honored and privileged to be the facilitating instrument for students who have risen to the call for action by drafting the Bar Exam Revision Proposal, which will soon be before the California State Bar's Board of Governors and the Judicial Council.

In Calfornia, the Bar Exam Passage rates are significantly lower for minority takers: On the July 2004 Bar Exam, the 74.6% of the white takers passed. However, the pass rate for African American takers was 48.2%; for Hispanic takers, 53.4%; for Asian takers, 65.5%; and for other minorities, 61.1%. It should also be noted that the numbers of bar-takers themselves are misaligned: 2,138 white persons took the July 2004 Bar, while only 110 African American did so; 294 Hispanic, 487 Asian and 193 other minorities took the Bar. The February 2004 Bar Exam yields similar results: 73% of the white takers passed; 43% of the African American takers passed; 58% of the Hispanic takers passed; 65% of the Asian takers passed and 55% of other minorities passed.

Clearly, there is a pattern disparately affecting law students of color who seek to enter the legal profession in California. The pattern requires reversal if we, as a profession, are serious about becoming diverse. Changing the Bar will be the first step to doing that. How? Here's what a few Boalt students say:

"Since it is impossible for students like me to package up this class (The Rhetoric of Race & Gender) and to take it with us into the legal profession, we need something else that tells us that we are just like everyone else, and a diversity component to the Bar would be a start. It shows that the State of California is committed to fostering an understanding of all of the aspects of our legal profession. It will say to our lawyers that diversity issues are not confined to criminal or constitutional law, but that diversity permeates all areas of our entire legal careers. It will also send a message to students like me that our shared experiences, backgrounds, and concerns are not to be diminished, laughed off, ignored, or confined. In these respects, a diversity component to the bar would be invaluable." Tiffany R. Thomas (Boalt Hall, JD expected 2005).

"I believe a diversity component should be added to the bar exam. It symbolizes our profession's commitment to diversity and signals to law schools and firms that the state bar is taking real action on the issue of diversity. Firms and law schools may then feel pressure to follow suit and also take real action toward diversifying their institutions." Kacey M. Kamrin (Boalt Hall, JD expected 2006).

Reasons for Revising the Bar

The Bar Exam Revision Proposal represents significant effort on the part of the authors (the students at Boalt Hall enrolled in The Rhetoric of Race & Gender) to place into perspective the rationale for revising the California State Bar Examination (hereafter "Bar") and avenues to bring about that reform in the immediate future.

A key concern of the students is the lack of equity and diversity issues in the Bar. By revising the Bar Exam to include racial and gender bias issues as a diversity component tested in tandem with currently required core exam subjects, law schools would further be encouraged and compelled to expand their curriculum to include such issues. This would yield a legal profession better prepared to serve the needs of California's culturally and racially diverse society.

The judicial branch is obligated under the California Constitution to treat all people fairly and ensure equal access to the courts. Equal access to justice, however, is at risk for compromise with a bar comprised of attorneys who do not responsibly address -or know how to address-issues of diversity and bias. The admission to legal practice in any state should require more than knowledge of substantive law; it must demand competency defined by the racial and cultural diversity of 21st century America.

The Bar currently may be an excellent tool to test an ability to study law competently, but it does not necessarily indicate an ability to practice law competently. In fact, legal educators and practitioners widely acknowledge that the Bar is really a rite of passage which functions more as an exit exam, a law school comprehensive, than as a professional entrance exam. In the demographically diverse state of California, legal competency must include knowledge, respect and consideration of racial, ethnic, linguistic and cultural differences. The California State Bar and its members, including all lawyers and the judiciary, have a professional responsibility to promote the quality of legal services to the people and the administration of equal justice. The principle of equal treatment of all persons before the law is essential to the concept of justice.

By revising the Bar to include racial and gender bias as a diversity component tested in tandem with required core exam subjects raises the competency of our profession. Requiring the admission process to consider issues of race and gender in its examination will force admittees to demonstrate knowledge that equal access to justice can be compromised without legal professionals who responsibly address these issues.

The Bar Revisions

The authors of this Proposal ---the students of The Rhetoric of Race & Gender--collectively provide:

  • In effectively applying the relevant laws to fact patterns involving diversity issues, test takers would be required to think in an ethical and lawyer-like manner about the implications of race and gender within the day-to-day practice of law.
  • Revisions of the California State Bar Exam would improve the exam in two critical ways: (1) all attorneys-in-training would be required to think about issues of race and gender and their impact on the law in their preparation for the bar exam. This would make the attorneys-in-training more conscious of the racial, ethnic and gender diversity that exists in California today and how that diversity plays a role in the law and the legal community; (2) Bar exam performance of minority law school graduates could potentially improve by including questions that test an understanding of issues involving race and gender in the law.
  • Questions that focus and consider gender, race, socioeconomic status, and privilege should be included throughout the topical sections of the Bar. This would fit neatly within the ethics portion of the exam as well, with questions particularly focused on the value and need for diversity within the legal field itself. It is very important to not only think about diversity within the legal system, but the law's disparate impact on diverse groups. Tying these realities into the Bar would be more useful to the actual practice and effect of law in society.
  • The idea behind including a diversity component to the Bar Exam should be to impress upon those practicing law in California that there is not enough diversity in the legal profession and that there should be more; that issues of diversity and race affect access to justice and it is the responsibility of those entering the legal profession to change this.
  • The revision of the Bar should: (1) test knowledge regarding the gender, racial and ethnic make-up of the legal profession; (2) provide realistic scenarios regarding discriminatory acts by, and within, the legal community; and (3) inform new attorneys of the proper channels for reporting such incidents, who often fear repercussion or minimalization of the reported conduct.
  • Ensure that the Bar is created and graded with input from a diverse group of legal professional to eliminate cultural bias in the Bar Exam itself. By reforming the Bar in this manner, the Bar questions are more realistically based.
  • Bar examiners and graders should be instructed to give additional grading points for test-takers who incorporate a sincere and well-reasoned diversity issue in their exam answers, if such exists.

The Positive Effect on Law School Curriculum

It is suggested that since diversity issues are not tested on the Bar, it is not necessary to teach law students about the need for racial, cultural and gender competence. The law school experiences of the students put that line of thought in bitter disharmony with reality:

When I look back on my 3 years at Boalt Hall, my thoughts always begin with my very first day of school. At 8:45 a.m., I was thrust into the beginning of my legal career with a discussion of Lockean notions of property rights. My professor began with the Lockean ideal that all men are the masters of their own labor, and then asked us for instances in which this statement was not true. One student raised his hand and answered, "prison labor." Another said "prostitution." Yet another responded, "indentured "servitude." As I sat and listened to my colleagues bravely raise their hands and submit their thoughts for our scrutiny, I remembered my reaction to reading the class assignment the week before. My mind immediately went to the era of slavery, thinking Locke was completely nuts. Despite my thoughts, I refused to raise my hand. There was no way in the world that the first word out of my mouth in law school was going to be "slavery." But I could think of nothing else. My great grandmothers were born slaves. There was nothing else that could provide a better example. So I raised my hand and answered honestly and truthfully. My professor exclaimed, "YES! Finally!" I sat back in my seat, let out a big breath, tried to suppress the smile threatening to spread across my face, and then decided the type of person I would be in law school - I would just be me. Unfortunately, it didn't always work out that way. In the few classes that actually mentioned minorities and women in my first year, I usually received one of three responses. Either I was elevated to the position of 'Ms. Black America' with the power to speak for the entire African American population, tuned out because "here she goes again," or completely dismissed as seeing something that wasn't really there. I then learned to make my comments free from any reference to my ethnicity, economic background, and gender in an attempt to gain credibility with my classmates. For these reasons, Rhetoric of Race and Gender has been one of my best experiences in law school. Our classroom is one of the few places at Boalt where I feel completely comfortable. I don't have to rehearse my comments to make sure that my race and gender can not be seen as coloring (pun intended) my point of view. Even though we talk about race, I'm not constantly reminded of my Blackness or my femininity. For once, I'm just a student like everyone else. And I'm not alone. Tiffany R. Thomas (JD expected 2005)

Being a woman in law school, it is discouraging to find that the school's faculty continues to be male-dominated, even though the majority of our class is female. I believe this is a reflection on the inability of the legal profession to take on a female face. Female attorneys are systematically paid less and are extremely underrepresented in the practice, despite the large number of female law students. Until we can change the bias of the profession, then our faculty will continue to look like the legal profession overall -- male dominated. The law presumes to be gender- and color-blind, but the statistics prove, time and again, that our profession has the least amount of diversity of all equivalent occupations. The longer we ignore statistics such as these, the longer our profession will maintain its lack of diversity. Classes such as the Rhetoric of Race and Gender are necessary because they put these oft-forgotten issues of diversity on the radar screen. Kacey M. Kamrin (JD expected 2006)

I just wanted to say thank you for all that you do to move forward the struggle for diversity and in the process humanity. Emmanuel Andre (JD expected 2007)

In my third year at Boalt, I have finally found a class that as a young African American female, enables and encourages me to openly discuss and share my opinions and experiences regarding race and gender with my peers without facing stares and silent backlash. I have found a class in my third year that is all about the intersection of race and the legal profession. Throughout this semester, this class has been a safe haven for me, and has allowed me to cry, vent, and just let my hair down. In the face of a changing environment in California, and at Boalt, this course is vital to cultivate a spirit at Boalt. A spirit that truly welcomes other similarly-situated students like myself and that strives not only to retain minority students, but that makes minority students a part of the Boalt community and prepares them not only to enter but to truly diversify the profession. Melissa McDaniel (Boalt Hall '04).

The authors of this Proposal reiterate the conviction that Bar performance and passage by minority law school graduates would improve by including questions that test an understanding of issues regarding race and gender in the law:

  • The Bar should require all law students take a course in diversity before receiving their Juris Doctorate degree. Much like students are required to take a course in professional responsibility, students should also be required to take a course in diversity in the legal workplace.
  • The Bar should require aspiring lawyers to demonstrate 'cultural competency.' This type of professional competency is especially important in the legal community because lawyers need to be mindful that this is a service profession and it is the professional responsibility of lawyers to be effective service providers.

Professor Abraham wishes to thank contributing the following contributing authors: Emily Ludmir, Susana Duarte, Kacey Kamrin, Nayantara Mehta, Bridget Smith, Heather Conger, Joana Basulto, Liz Mazur, Michele Roberts, Paulo Sergio Jakutis, Tiffany R. Thomas, Emmanuel Andre, Javier Rivera.

 

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