Lawyers Must Finish the Work After Affirmative Action’s Demise

Amid a swath of recent attacks on equitable education—from the curriculum in high school classrooms, to limiting new hires at schools and disciplines at colleges and universities, to the canceling of diversity equity, and inclusion efforts—the Supreme Court’s decisions in the affirmative action cases present the most profound attack yet.

As lawyers, we are strictly bound by a professional conduct that renders us representatives of not only our clients, but also the legal system. Yet as Chief Justice Fred Vinson said in Sweatt v. Painter, the law is simultaneously highly learned and intensely practical, “and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.”

Therefore, as lawyers, we are also wholly invested in the progression of the practice as reflected in the progression of our democracy.

For an industry that is tasked with representing the public, lawyers unfortunately remain largely unrepresentative of the public itself: Black people comprise 13.4% of the US population, but only 4.5% of lawyers. What’s even more sobering, the percentage of Black attorneys has fallen in the last decade, from 4.7% in 2012 to 4.5% in 2022, and only 2.32% of law firm partners are Black. Diversity in the legal profession enables us to better reflect society at large, which also helps us better understand and serve our clients.

The stark dichotomy between the number of Black people and Black lawyers in this country far precedes the moment first-year law students step into their fall Contracts class. Like many industries, the journey to becoming a lawyer is often marked by an investment and pipeline of tutors, tests, and time.

The imbalance of diversity in the legal profession is an example of the problem, not the root of it. For the numerous highly-qualified Black students who dream of becoming lawyers but come from households that earn half as much as their white counterparts, affirmative action had opened doors that were previously shut.

During many moments in law school and while I practiced law, I was the only or one of the few Black lawyers in the room. The sense of isolation and need to represent minoritized community felt very heavy on many days. With affirmative action now a tool of the past, we can only expect this sense of isolation to grow. For many Black students, the pipeline into the profession and then navigating the profession itself is full of obstacles and special burdens.

But the issue at hand is deeper than pipelines and income. The gaps in representation and available opportunities are rooted in an inequitable racial and socio-economic landscape that perpetuates disparity. Race-conscious policies had persistently been one such tool to level the playing field—to ensure highly-qualified people of all backgrounds have a fair shot.

Just as lawyers are hired by clients to right wrongs and advocate on their behalf, affirmative action was created to correct centuries of wrongs that intentionally locked Black Americans out of opportunities for success.

At the University of North Carolina at Chapel Hill, one of two universities involved in the Supreme Court cases, the doors were literally locked to Black students until 1951 when a court ordered the admission of Black applicants. In 2003 in Grutter v. Bollinger, the Supreme Court upheld the University of Michigan Law School’s commitment to diversity through affirmative action, asserting there was a “compelling interest in attaining a diverse student body.”

Race-conscious policies aren’t the miracle elixir to rid our country of racism, but they proved to be successful tools in mitigating the issue at hand. And a system without affirmative action in place has immediate drastic consequences. A study from 2020 that looked at 19 public universities with affirmative action bans in place in the mid-1990s found that the percentage of Black, Hispanic, and Native American applicants was on average 14% below their share of high school graduates in their respective states.

In the face of steadily declining Black students’ enrollment at colleges and universities, the aftermath of affirmative action isn’t just about “success stories” for students of color, but all stories. Many studies have shown that racial diversity is good for students of all races. In college and law school, the racial, ethnic and religious diversity of Yale and Harvard were critical to my education. I met many White classmates that had never had meaningful interactions with Black and Latino students prior to entering college. That’s become even more true in the US now where K-12 schools are more racially segregated than they’ve been since the 1960s.

Since race-conscious policies opened the door of opportunity for minority students, institutions have developed strategies to make higher education truly inclusive. For example, many colleges and universities have cultural centers, affinity housing, and specific pipeline programs for students of color.

We must all be committed to breaking down barriers to success in the legal profession for historically marginalized groups. Law schools should take a proactive role in reexamining and refining their own policies and practices that have artificially created systemic barriers including: overreliance on standardized testing, lack of academic supports, and any legacy preferences in admissions.

To our fellow colleagues in the legal community employed in the pursuit of justice, we must also pursue justice among our own ranks. Diversity is not a check of a box, nor is it a golden ticket passed out to few. Diversity is a state of success in which the deeply American value of equal opportunity for all is honored to the truest degree.

The end of affirmative action tests how committed we are as a society to providing opportunities for students of all racial backgrounds. Let’s pass this test and double-down on our commitment to racial equity.

The case is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, US, No. 20-1199, 6/29/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Danielle Holley is the twentieth president of Mount Holyoke College and dean emerita of Howard University School of Law. Holley currently serves as the co-chair of the Board of the Lawyers’ Committee for Civil Rights Under Law.

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