By Ayah Helmy
Law firms, government agencies, and private companies alike have adopted and employed a wide variety of diversity, equity, and inclusion (DEI) initiatives to combat what we all know to be true: the practice of law in Minnesota is a largely ethnically and racially homogenous practice. Current DEI best practices include guidelines regarding recruiting, hiring, retaining, and promoting individuals from disenfranchised or underrepresented communities, including Black, Indigenous, and people of color (BIPOC). These practices are limited in scope and efficacy if we do not address the reality that BIPOC suffer from disenfranchisement in law schools. The pipeline into the law is affected by a myriad of factors. It is important to not only focus on recruitment of BIPOC into law schools, but also the success of law students in our schools.
Thankfully, our law schools and bar are more diverse than ever before. Currently, 10% of Mitchell Hamline’s student body identify as Black, and 10% identify as Hispanic or Latino. At the U of M law school, 25% of students identify as people of color. St. Thomas law school advertises 21% “minority enrollment” on its website. However, even with this increase in representative diversity, law school has not changed enough for students of color to thrive at equal rates as their white peers.
This is not because BIPOC law students are less capable or less tenacious than their white counterparts. In my four years of teaching, I have observed that there are three types of barriers to the equitable success of BIPOC law students: institutional-macro, institutional-micro, and interpersonal discrimination. The macro institutional barriers are the barriers that I discussed in my last column. The justice system was created by and for white, land-owning men. People who exist outside of that identity come to law school and face, in a more intimate way than ever before, the reality that this legal system was developed as a tool to benefit that demographic at the expense of all others. The foundation of the American legal system that continues to operate to present day perpetuates advantage for white males and oppression for all others.
I have observed that there are three types of barriers to the equitable success of BIPOC law students: institutional-macro, institutional-micro, and interpersonal discrimination.
Native American and Indigenous students endure reading property law opinions in their first year of law school that callously refer to their ancestors as savages. Black students read constitutional law opinions that demonstrate that a little over a hundred years ago, debates raged about whether Black people could be citizens. Immigrants and religious minorities read opinions about the tenuous grasp on citizenship afforded to people who have origins from another country. These blatancies do not only affect BIPOC students, but women, LGBTQIA, disabled, and poor students. It is a reality that one may generally understand before law school, but law school introduces BIPOC students to the legal and institutional intricacies of the intentional subjugation of their peoples. Facing those truths throughout law school scrapes away optimism and erodes the confidence that compelled the pursuit of a law degree.
While it is hard to quantify, this has a profound impact on students. The punishing reality of legal precedent and power dynamics in the law has a dampening, depressing impact on BIPOC law students in particular, as many were enticed by the profession to be resources to their communities or to help decrease the structural barriers that their communities face. Experiencing the methodical dehumanization of people or—more specifically their own people —through revered precedent, written by revered legal scholars, in an entrenched system, can cause a profound, although sometimes difficult to articulate, reassessment for a BIPOC law student—Why am I even here? What can I even do?
This macro-institutional reality has a bearing on the micro-institutional reality of law schools. Firstly, professors and the school are usually unaware, and therefore ill-equipped and untrained to handle, the reality of the weight the macro-institutional barrier has on BIPOC law students. Law schools rarely, if ever, require students to learn how to analyze the law through an investigative historical lens to better understand its impact. They don’t require professors to be trauma-informed in their teaching practices. This results in BIPOC students bearing the brunt of difficult, exhausting conversations during their tenure at the law school and into their career as lawyers.
Law schools rarely, if ever, require students to learn how to analyze the law through an investigative historical lens to better understand its impact.
The lack of attention to the impact trauma has on law students can cause harm in the classroom. An example of harm is when a classmate’s professor asked in class, “Who has it worse in society, a gay white man or a straight Black woman?” to spark a debate about constitutional law. Or, as another classmate of mine shared, a professor allowed a lengthy debate about whether a man with the same name as a September 11th bomber, but no relation to the event, deserved to be accidentally kidnapped and tortured in the US’s extraordinary rendition program because he is from the same part of the world.
Secondly, law schools still operate as gatekeeping institutions to the legal field, using antiquated teaching methodologies to maintain prestige and recognition. For example, as an attorney, I have the opportunity to fully understand the facts and law of my case before presenting it, writing a brief on it, or attempting to resolve it. However, law school exams often require students to memorize law and write without reference materials within the confines of a couple of hours. Students are expected to wait for feedback until the end of the semester when they receive their grade; there is no recourse to go back and try to truly understand the material or demonstrate true understanding. Many professors still randomly call on students to lead class discussions in a way that does not move class forward towards learning.
We know more about psychology, pedagogy, and social sciences now than we ever have before. Our marriage to antiquated systems of teaching do not give us the best lawyers at the tops of our law school classes—they give us the best memorizers and test takers. These methods of measurement largely advantage white students, who statistically go to better-funded schools, have had more exposure to lawyers and law school than their BIPOC peers, and otherwise have been given opportunities to develop these specific skills. Rewarding these skills with good grades means that employers believe that those with good test-taking and memorization skills are the most talented, most hardworking, and most intelligent people in their law school classes. While these students deserve recognition, their law school talent does not necessarily translate into legal prowess, and those without these credentials who may have talent and legal prowess are less likely to be employed, developed, mentored, and seen as competent. Through these practices, we are reenforcing the barriers to success instead of innovating and evolving to develop the most talented, well-rounded, and well-prepared lawyers.
The final barrier is interpersonal discrimination, whether caused by implicit or explicit bias. Discrimination by educators and administrators exists. Studies by various institutions have documented and measured the bias that exists in the legal profession and law schools. None of us are immune to our implicit bias. However, when one is in a position of power, that bias becomes more impactful. One such study that demonstrates implicit bias in the law is a study called “Written in Black and White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills” by Nextions. In that study, law partners were given the same brief and told, alternately, that it was written by a white or Black “Thomas Meyer”, a fictitious third-year law student at NYU. The white Thomas received an average score of 4.1 for the same memo that Black Thomas received an average of 3.2. Feedback for white Thomas included “generally good writer but needs to work on…” and “good analytical skills.” Feedback for Black Thomas included “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”
What this indicates is that potential in Black law students is measured differently than potential in their white counterparts because of implicit or explicit bias that people have about Black law students. While law schools employ blind grading in some of their classes, this is not a foolproof way to address this issue, as this undermining of Black potential can lead to death by a thousand papercuts, not just the painful blow of a bad grade. When a BIPOC law student goes to office hours, is she treated the same as her white counterpart? When a BIPOC student applies for a work study or a research assistant position, is she considered as competent or a welcome presence in the office? Is a BIPOC student’s question in class seen as apt or redundant? Is a BIPOC student’s answer in class seen as brilliant, adequate, or inadequate? Will she be admonished, diminished, or otherwise punished for her question in a way that will keep her from asking a question next time, thereby affecting her understanding of a subject and overall education? How does the amalgamation of all these moments show up in a BIPOC law student’s ability to see herself as a lawyer? In her GPA? In her ability to earn a competitive internship? In her ability to sell herself at an interview?
Administrators also bear a similar impact on a student’s ability to thrive. Our innate affinity as humans to help, befriend, and be close to people who look and act like us can impact an administrator’s ability to be as flexible with a BIPOC student as she was with a white student. It can impact an administrator’s willingness to initiate, fund, and develop DEI initiatives, affinity groups, and other impactful institutional tools against inequity. Administrator bias or lack of BIPOC cultural fluency can also lead to initiatives being administered or emphasized that are not adequately responsive to the needs of BIPOC learners.
In addition to law professors, administrators, and potential employers having implicit and explicit bias that impacts the learning, development, and equitable success of BIPOC students, peer to peer discrimination also affects whether a law student’s experience is negatively impacted. BIPOC students can, at times, be the victims of hostile comments, looks, or ostracism. Some are merely avoided by their peers all together.
This is hardly an exhaustive accounting of the ways in which BIPOC law students are systemically disadvantaged. For example, there exists the deeply entrenched social network from which many white students benefit that help them network, be mentored both formally and informally, ask the right questions at networking functions and interviews to advance to the next step, and more. Another example is how law school hiring and tenuring of professors is also steeped in antiquated methodologies and measures that yield a less diverse scholarship, leading to both lack of BIPOC student representation in faculty and in academic scholarship.
Studies have shown that diverse teams lead to direct financial profits—as high as a 31% increase in profit.
The compounding impact of all these pieces creates significant barriers for equitable success. While there is not enough space here for me to both identify the issues and explain a possible solution to each, the principles applied in employers’ recruitment, hiring, retention, and promotion practices may be adopted and applied in this context.
Studies have shown that diverse teams lead to direct financial profits—as high as a 31% increase in profit—when a team is racially diverse compared to when it is not. In the legal field, diverse teams increase firm reach and impact, improve in-house teams’ breadth and depth of reach in their organizations, and increase the competencies of government legal teams. Not only is setting BIPOC law students up for success a moral imperative, but critical to the bottom line—from the boardroom to the courtroom.
Ayah Helmy
ahelmy@brighthealthplan.com
Ms. Helmy works as counsel for Bright Health and teaches at the Mitchell Hamline School of Law and the University of Minnesota. She formerly worked in private practice and as an assistant Ramsey County attorney, advising and litigating on behalf of county agencies.