Page 13 - Delaware Lawyer - Summer 2022

While we are not able to source direct diversity data from Delaware’s Bar Association, the data we do have shows real room for improvement. In a state that is 24.7% Black,1 our larg- est attorney workforce — firms in the Wilmington area — was just over 8% people of color, according to a 2019 report from the National Association for Law Placement (NALP). That rate was the lowest of any Mid-Atlantic metropolitan area in the NALP report, and the disparity grew even further in the most senior legal positions: only 1.33% of Wilmington partners were Black, according to the NALP report.
This problem exists across es- sentially all practices in our state, whether public or private. Speaking from experience, the DOJ is not ex- empt: only about 10% of Delaware’s Deputy Attorneys General are people of color.2 Despite our best efforts, we have struggled mightily to improve recruitment of non-white attorneys given that our state’s bar exam is widely considered to be among the highest barriers to entry for any of America’s legal communities.
Unfortunately, it has become easy to take these kinds of yawning dispar- ities for granted in every career sec- tor — and indeed they are pervasive in virtually every professional class. Only 5% of doctors, 6% of tenure- track professors,3 7% of teachers,4 and five CEOs in the entirety of the For- tune 5005 are Black, to cite just a few examples. Each of these disparities attest to how far we have left to go to ensure educational and economic equity in a nation grappling with ra- cial inequity.
But the disparities in the legal sys- tem are especially troubling, because they are not only an end result of ra- cial inequity but a means by which it can be perpetuated.
The Law as an Agent of Inequity
These inequities color a system that, historically, has played a direct role in perpetuating racial inequity and, neces- sarily, must play an equally direct role in reversing it. The courts, officers of the court, and the law itself all exist to ensure fairness and equity, to protect our civil rights, and uphold the pub- lic’s implicit trust in one another and in their institutions. Should the law not represent those who for genera- tions have been treated unfairly, whose rights have been abridged, and who have had the greatest cause for dis- trust? Should the justice system itself
not be the first place where we insist on perspective and representation?
The legal system was not a passive observer of racial inequity; it was an active architect and enforcer, from slavery through Jim Crow and well into our lifetimes. The law itself was used as a weapon to enforce white supremacy, beginning with the Con- stitution itself and running through fugitive slave laws, the Black Codes, Jim Crow, and even de facto racism in programs we hold as great hallmarks of progress, including the New Deal and the Fair Housing Act. In the 19th and early 20th century, the U.S. Supreme Court repeatedly issued reactionary opinions that curtailed civil rights: it set chattel slavery in stone, undermined the 14th and 15th Amendments, and legitimized apart- heid under the despicable doctrine of “separate but equal,” which re- mained standing precedent for nearly 60 years.6 All the while, a litany of state and local courts and lawyers up- held an arsenal of de jure and de facto racial discrimination — from restric- tive housing covenants and poll taxes to disparate sentencing guidelines in the criminal justice system.
I would be remiss not to note how starkly this contrasts with the clear- headed rulings of the modern era, wherein the courts have often spoken as the nation’s better angels, even as elected officials would not. We need look no further than the former Chancellor Collins Seitz, whose rul- ing in Belton v. Gebhart7 not only pre- saged the seismic outcome of Brown v. Board of Education,8 but made it the only one of Brown’s five compo- nent cases in which the lower court ruled on the side of equality. To be sure, countless attorneys arrive at a career in law today precisely because the practice of law has proven to be such a ripe frontier in the fight for progress and change.
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