(Bloomberg) — Ketanji Brown Jackson has accomplished something that few black women in the legal profession have: getting through the leaky pipeline.
While black women make up just under 5% of law school freshmen, the turnover rate among minority lawyers is as much as three times that of their white peers, according to the American Bar Association. Black women make up just over 3% of employees and less than 1% of partners. Jackson, who was nominated to the U.S. Supreme Court by President Joe Biden last month, is just one of 70 black women to serve as federal judges, and if confirmed, they would be the first to serve on the nation’s highest court. .
Professional women of all kinds lose ground as they climb the ranks for a variety of reasons, including bias, lack of parental support, and inadequate growth opportunities. In fact, according to studies by McKinsey & Company and LeanIn.Org, black women are less likely than whites to advance into management, and more likely to report being subjected to disrespectful comments.
Especially within businesses and courtrooms, black women say they face harassment and, if they engage in inappropriate behavior, retaliation. In industry focus groups, black women said they were faced with stereotypes about being overly aggressive and having to repeatedly prove themselves to clients with outrageous results.
“I think it says a lot when women have broken through, when there have been legal, judicial, social and other barriers to keep them away,” said Michele Bratcher Goodwin, a Chancellor’s Professor at the University of California Irvine. “What does that mean for black women? It meant climbing, not hills, but in fact very steep mountains to break historical patterns of discrimination, segregation and exclusion.”
In a 2017 speech at the University of Georgia School of Law, Jackson herself discussed the hurdles she faced as a mother and as a black mother-in-law.
“The hours are long, the workflow is unpredictable, you have little control over your time and your schedule – and you start to feel that billable hour demands are constantly in conflict with your children’s needs and your family responsibilities, she then said.
Jackson, 51, said it was the “inflexibility of work schedules and assignments that became the deal breaker” for her working at a major law firm early in her career, leading her to a range of government and private practice jobs, and eventually to the bank. She was confirmed as a judge of the Federal District Court in 2013 and as a judge of the Federal Court of Appeal in 2021.
However, prejudice can occur much earlier. In the 1980s, when Jackson told her high school counselor that she wanted to attend Harvard University, she was warned not to set her “point of view so high,” according to the White House. Though she proved her naysayers wrong—she later graduated magna cum laude from Harvard and cum laude from Harvard Law School—she was one of the few.
Due to segregation, black people were “barely visible in law schools” until the 1960s, according to researchers; and only after the passage of Title IX of the Higher Education Act in 1972, which prohibited gender discrimination in enrollment, did law schools begin to admit more women.
From the early 1970s to the mid-1990s, the percentage of African American law students tripled, but the pace of progress slowed as anti-affirmative action initiatives took hold in some states. As of 2020, 8% of law students were African American, according to the ABA.
Getting into and graduating from law school is just the first hurdle.
In focus groups and surveys of 100 women of color who completed law school 15 years or more ago, nearly all said they had “experienced bias and stereotyping over the course of their legal careers,” according to a 2020 ABA report. Respondents said that they had to walk on a “string” to avoid tropes, such as being seen as overly aggressive when dealing with discriminatory behavior. Previous research found that more than half of women of color in the profession were confused with the custodial, administrative, or courtroom staff.
Many also reported that they didn’t get many opportunities to work with high-profile clients and had fewer opportunities to advance. Black women and men made up less than 1% of those in the top 10% pay group at companies, a 2020 ABA survey found.
Some, such as Andrienne McKay, a 26-year-old personal injury attorney in Georgia, say they wonder whether they would be treated the same by colleagues if they were male, or white, in professional situations such as testimonials.
“Usually you refer to the counselor by their last name, but there are times when the opposing side says ‘Andrienne,'” she said. “I have to stop every now and then and say, ‘We’re stuck now, so Ms. McKay will be fine.’ You also don’t want to be seen as the “angry black woman.” So it’s always trying to balance, should I tackle this or let it slide?”
Under pressure to diversify their ranks, at least 118 law firms have pledged to apply the Mansfield Rule when hiring and pursuing promotions, which requires at least 30% of candidates to come from an underrepresented group. Early adopters diversified their management committees by more than 30 times the number of companies not using the rule between 2017 and 2019. Meanwhile, a record 28 black women run law schools as deans or interim deans, and the 2021 class of summer employees at major U.S. corporations was the most diverse ever. A greater focus on diversifying the bailiff’s cohort could also open the way for more “firsts” in the bank.
During his presidential campaign, Biden pledged to diversify the courts — and he has bankrupted more women and minorities than Trump or Obama. Of the 46 federal judges confirmed under Biden, 24% have been black, according to the American Constitution Society. These include a number of black women, including Tiffany Cunningham, Eunice Lee, and Holly Thomas.
A recent 108-page report from the Chief Justice of the Delaware Supreme Court, Collins J. Seitz Jr. and Judge Tamika Montgomery-Reeves, outlined additional strategies companies and law schools could take to encourage diversity.
They recommended creating paid internship opportunities at the pre-college level; a targeted media campaign to make students aware of career paths in the field; mentorship opportunities between judges and students interested in judgeship; and establishing reporting requirements to measure the success of program initiatives.
The report also suggested adopting a high school student program as an alternative to the bar exam and a loan repayment program for those who complete the program.
“It takes design,” said Yvette McGee Brown, the first black female judge on the Ohio Supreme Court and now a partner at Jones Day. “You have to say to your partners, ‘I want you to mentor this person’ and you look for opportunities to let those diverse employees gain experience on important matters with important customers. And partners must ensure that diverse attorneys have access to client-centric opportunities because attorneys stay where they are happy.”
By increasing representation, it shows what is possible.
For Megan Byrne, an associate attorney and director of the Racial Justice Project at the Center for Appellate Litigation, it’s encouraging to see a path for someone who has worked in similar corners of the legal field as she has; Jackson would also make history as the first public defender to serve on the Supreme Court.
“She has had relatives affected by the criminal system,” said Byrne, who oversees the representation of needy criminal suspects. “It’s sad that this is a rarity and so groundbreaking, but it has made me more hopeful for the future.”
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