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Reflections on a New Study that Examines Discrimination and Bias Reported by Lawyers: Comment on Blanck, Hyseni, and Altunkol Wise’s National Study of the Legal Profession

Published online by Cambridge University Press:  12 July 2021

Extract

Haley Moss was diagnosed with autism at age three. At the time, her parents were told that achievements such as obtaining a driver’s license, graduating from high school, or even making friends were unlikely. Even after she proved the experts wrong and gained acceptance to law school, Moss saw continued challenges for students with disabilities. “I remember in my first year of law school, there was a blind student in my section, but she did not return for the second semester—and I wondered why,” she told us.1 “Law school is not always as accessible as it could be for people with disabilities.”2 But those people are essential to the functioning of our legal system, she added: “We need all types of minds to get all kinds of jobs done.”3

Type
Commentaries
Copyright
© 2021 The Author(s)

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Footnotes

President and CEO, Law School Admission Council

††

DEI Policy and Research Analyst, Law School Admission Council.

References

1 A Trailblazing Lawyer Advocates for Accessibility and Inclusion, L. Sch. Admission Council (July 31, 2020), https://www.lsac.org/blog/trailblazing-lawyer-advocates-accessibility-and-inclusion [https://perma.cc/D6GZ-B8AY] [hereinafter Moss Interview].

2 Id.

3 Id.

4 Blanck, Peter, Hyensi, Fitore & Altunkol Wise, Fatma, Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ+, 47 Am. J.L. & Med. 21, 12-13 (2021).Google Scholar

5 As Blanck et al. note in their article. Id. For example, using the After the JD data, it was found that women, LGBTQ+, and people of color are more likely to perceive experiences of discrimination in the workplace. See id. at 11 n.5.

Specifically, when women of color have the highest probability of perceiving discrimination in the legal workplace. Robert L. Nelson et al., Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44 L. & Soc. Inquiry 1051, 1061 (2019). Women of color are double marginalized at the intersection of race, ethnicity, and gender. Similar findings of the compounded effects of being a woman of color are seen in legal academia. See generally Meera E. Deo, Unequal Profession: Race and Gender in Legal Academia (2019).

6 See, e.g., Press Release, U.S. Dep’t of Justice, Law School Admission Council Agrees to Systemic Reforms and $7.73 Million Payment to Settle Justice Department’s Nationwide Disability Discrimination Lawsuit (May 20, 2014), https://www.justice.gov/opa/pr/law-school-admission-council-agrees-systemic-reforms-and-773-million-payment-settle-justice [https://perma.cc/6STW-SY78]; LSAC Diversity, Equity, and Inclusion Writing Competition, L. Sch. Admission Council, https://www.lsac.org/choosing-law-school/paying-law-school/law-school-scholarships/diversity-equity-inclusion-writing-competition [https://perma.cc/Y6NJ-3GM6]; LSAC Policy on Accommodations for Test Takers with Disabilities, L. Sch. Admission Council, https://www.lsac.org/lsat/lsac-policy-accommodations-test-takers-disabilities [https://perma.cc/E3A3-YL68].

7 See Moss Interview, supra note 1.

note 1

8 Id.

9 Id.

10 Mission & History, L. Sch. Admission Council, https://www.lsac.org/about/mission-history [https://perma.cc/86ME-G4JF].

11 Kellye Y. Testy, Embracing Our History as We Embark on a Digital Future, L. Sch. Admission Council (Sept. 30, 2019), https://www.lsac.org/blog/embracing-our-history-we-embark-digital-future [https://perma.cc/B2HB-B2PV].

12 What is the LSAT?, L. Sch. Admission Council, https://www.lsac.org/lsat [https://perma.cc/BJ6G-E2D6].

13 See Press Release, supra note 6.

note 6

14 Id.

15 About the LSAT-Flex, L. Sch. Admission Council, https://www.lsac.org/update-coronavirus-and-lsat/lsat-flex [https://perma.cc/YX2J-ZPAY].

16 See Blanck et al., supra note 4.

note 4

17 The use of “minoritized” is intended to refer to the “process [action vs. noun] of student minoritization” that reflects an understanding of “minority” status as that which is socially constructed in specific societal contexts. Michael Benitez Jr., Resituating Culture Centers Within a Social Justice Framework, in Culture Centers in Higher Education: Perspectives on Identity, Theory, And Practice 119, 131 n.1 (Lori D. Patton ed., 2010); Dafina-Lazarus Stewart, Racially Minoritized Students at U.S. Four-Year Institutions, 82 J. Negro Educ. 184, 184 (2013). For example, women are not minorities in legal education today, but they are one of many minoritized groups. These are groups that face social, political, economic, and educational barriers that constrict them. In this piece, examples of minoritized individuals include lawyers with disability, LGBTQ+ lawyers, women, Black, Indigenous, Latinx, and other people of color. Benitez, supra, at 131 n.1.

18Peter Blanck, Ynesse Abdul-Malak, Meera Adya, Fitore Hyseni, Mary Killeen & Fatma Altunkol Wise, Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers who Identify as LGBTQ+, 23 UDC/DCSL L. Rev. 23, 26, 35 (2020).

18 Blanck et al., supra note 4, at 15-16.

note 4

19 Id. at 15.

20 Id.

21 Testy, supra note 15.

note 15

22 We acknowledge that more needs to be done. By law, education institutions and workplaces must provide reasonable accommodations, but this should not limit us to only emphasizing accommodations. We must proactively send the message and create an environment, both in law school and in the workplace, where students and lawyers with disabilities can see themselves reflected. We must do more to actively ensure the development of a sense of belonging, which is crucial to persistence and performance. Annemarie Vaccaro, Meada Daly-Cano & Barbara M. Newman, A Sense of Belonging Among College Students with Disabilities: An Emergent Theoretical Model, 56 J.C. Student Dev. 670 (2015).

23 LSAC partnered with the American Bar Association to produce a video about why law firms and other organizations should hire lawyers with disabilities. To learn more see LSAC’s blog. How Lawyers with Disabilities Make Our Justice System Better, L. Sch. Admission Council (October 20, 2020), https://www.lsac.org/blog/how-lawyers-disabilities-make-our-justice-system-better [https://perma.cc/5AFM-96GE].

24 See Blanck et al., supra note 4, at 9.

note 4

25 See id.

26 See id.

27 Blanck et al. coded large organization to include firms and organizations with more than 500 lawyers, and coded private firms were other firms that did not include in-house legal departments, public sector, non-profit, judicial, education, and other. See id. at 26.

28 See id. at 9.

29 Telephone Interview with Dr. Angélica Guevara, Hastie Fellow, University of Wisconsin-Madison Law School (Jan. 8, 2021).

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 See, e.g., Kimberlé Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139 (1989). This compounded effect of holding multiple minoritized identities was recently termed raceXgender. Deo explains, “Women of color may suffer oppression based on what is referred to … as raceXgender. This term highlights the compound effects often caused by holding multiple devalued identity characteristics, namely the intersection of race and gender.” Deo, supra note 7, at 8.

note 7

41 To learn more about the experiences of the intersecting role of race, ethnicity, gender, and class in the working lives of women faculty of color, including in legal academia, see, Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris, Presumed Incompetent: The Intersection of Race and Class for Women in Academia (2012); Yolanda Flores Niemann, Gabriella Gutiérrez y Muhs & Angela P. Harris, Presumed Incompetent II (2020).

42 Telephone Interview with Dr. Angélica Guevara, supra note 30.

note 30

43 Id.

44 Id.

45 See Blanck et al., supra note 4.

note 4

46 Liz Fosslien & Mollie West Duffy, No Hard Feelings: The Secret Power of Embracing Emotions at Work, 185 (2019).

47 Recent research in legal education found that sense of belonging is predictive of academic performance and education satisfaction. Dorainne J. Green, Heidi E. Williams, Elizabeth Bodamer, Mary C. Murphy, Michael Frisby, Gregory M. Walton, Sam M. Erman & Victor D. Quintanilla. Group-Based Inequalities in Relationships in Law School Predict Disparities in Belonging, Satisfaction, and Achievement in Law School, J. Educ. Psychol. (forthcoming 2021).

In the workplace, “High belonging was linked to a whopping 56% increase in job performance, a 50% drop in turnover risk, and a 75% reduction in sick days.” See Evan W. Carr, Andrew Reece, Gabriella Rosen Kellerman & Alexi Robichaux, The Value of Belonging at Work, Harv. Bus. Rev. (Dec. 16, 2019), https://hbr.org/2019/12/the-value-of-belonging-at-work. Other research in education found that is sense of belonging is linked to positive academic outcomes, such as increased academic motivation, engagement, intention to persist, and achievement. See, e.g., Tierra M. Freeman, Lynley H. Anderman & Jane M. Jensen, Sense of Belonging in College Freshmen at the Classroom and Campus Levels, 75 J. Experimental Educ. 203 (2007); Leslie R. M. Hausmann, Janet Ward Schofield & Rochelle L. Woods, Sense of Belonging as a Predictor of Intentions to Persist Among African American and White First-Year College Students, 48 Res. Higher Educ. 803 (2007); Mary C. Murphy & Sabrina Zirkel, Race and Belonging in School: How Anticipated and Experienced Belonging Affect Choice, Persistence, and Performance, 117 Tchrs. C. Rec. 1 (2015); Gregory M. Walton & Shannon T. Brady, The Many Questions of Belonging, in Handbook of Competence and Motivation : Theory and Application 272 (A. Elliot, C. Dweck, & D. Yeager eds., 2d ed. 2017). Additional research using LSSSE data found that self-reported experiences of bias and stereotype concerns significantly and adversely affect law students’ sense of belonging—increasing the probability of a low sense of belonging. See, e.g., Elizabeth Bodamer, Do I Belong Here? Examining Perceived Experiences of Bias, Stereotype Concerns, and Sense of Belonging in U.S. Law Schools, J. Legal Educ. (forthcoming 2021).

48 Moss Interview, supra note 1.

note 1

49 For example, a study looking at 75 largest counties in the United States found that the differences in criminal sentences for Black and Latinx defendants compared to white defendants were smaller when there was more diversity in the local legal profession. Ryan D. King, Kecia R. Johnson & Kelly McGeever, Demography of the Legal Profession and Racial Disparities in Sentencing, 44 L. & Soc'y Rev. 1, 25-28 (2010).

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