“This is a unique moment, particularly to be a Black law student,” Harvard Law School Professor David B. Wilkins ’80, told an audience of students during a late February talk titled Black Lawyers Matter — Race, Obligation, and Professionalism from the Civil Rights Movement to BLM and Black Corporate Power.
Today, he said, you can find Black graduates in every echelon of American society and the world. “And of course, in 2008, that number came to include someone with big ears and a funny name, Barack Hussein Obama, and his wife, Michelle Obama, who became president and first lady of the United States.”
Lots has changed, but not enough, said Wilkins, faculty director of HLS’s Center on the Legal Profession. The good news, he said, is there are now 65,000 or so Black lawyers in the United States. In 1960, there were something like 2,200 Black lawyers in the entire country. But currently, Black lawyers account for less than 5% of members of the bar. And when you look at positions of power and prestige in the legal profession, he said, that number is lower.
Credit: Kathleen Dooher David Wilkins is faculty director of Harvard Law School’s Center on the Legal Profession.
The progress has been especially slow for Black women, he added. Even though they constitute more than 50% of all Black law students and Black law school graduates since the 1990s, they constitute less than 1% of all partners and less than 2% of the federal judiciary.
And most Black lawyers don’t have a chance to become partners of law firms or to become federal judges, said Wilkins. “Most of them work in a manner and earn comparable wages to what Thurgood Marshall did in the 1930s by representing Black individuals and small Black businesses.”
But Black Americans lag behind white Americans in almost every category of opportunity, he added, including income, wealth — and access to justice. And events since 2020 have only accentuated this divide, beginning with the disproportionate effects of COVID on communities of color, he said.
“Then came the murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and the burgeoning Black Lives Matter movement that shone a spotlight on American’s racist past, and its continuing effects including on the legal profession.” Wilkins said that includes a response from the legal profession that the center is interested in studying, including all the statements and the programs, plus the clients of the legal profession, who have pledged billions of dollars to racial and social initiatives.
“If you look behind almost every one of these initiatives,” he said, “there are Black women and men who are now in positions of authority as a result of gaining the opportunities that Brown v. Board of Education created. When you ask, what are the ripple effects of affirmative action, diversity and inclusion in higher education, we see these effects by these initiatives, which are not, of course, solely because of Black lawyers or even Black individuals. There are many people who have contributed. But I can guarantee that you will find at every company, at every law firm, Black lawyers who have pushed these initiatives.”
Two examples, he said, are Kenneth Chenault ’76, the former CEO of American Express, and Kenneth Frazier ’78, the former CEO of Merck and now its chair, who have created the OneTen initiative, which is recruiting companies to create more than one million new jobs for Black inner-city workers within the next 10 years.
Backlash and ongoing challenges
This growing Black political and economic power has also generated backlash, said Wilkins, citing the race-conscious college admissions case to be heard before the Supreme Court next year.
Wilkins also cited the response to the campaign promise by Joe Biden that he would nominate a Black woman to the Supreme Court. President Biden had not yet announced his selection of Judge Ketanji Brown Jackson ’96 when Wilkins gave his talk, but Wilkins described the way even a hypothetical Black female nominee’s credentials and objectivity were being questioned prospectively. These attacks are not new, said Wilkins, noting they were made against Thurgood Marshall when he was nominated to the Supreme Court and against other Black judges selected for the federal bench.
The idea that there is something about the relationship between racial identity and professional role that is in conflict persists today, said Wilkins. “What we want to do today is ask you to think about this,” he told the students, “What should be the relationship between who you are and what you do?”
“As my legal profession students know, the traditional answer for this was there really shouldn’t be. Once you become a lawyer, you adopt a professional identity that supersedes everything about you and you are governed entirely by a kind of professional ethic of what it means to be a lawyer, which is to abstract away who you are as a person.”
There is a reason why lawyers adopt this and why it is appealing even to Black lawyers, he said. It seems to protect attorneys from the very charges that were leveled against Marshall, and perhaps Supreme Court appointees today, that who you are outside your judge’s or your lawyer’s role is going to compromise your professionalism.
But that conception is false, he added. Nobody is abstracted from who they are, and professional norms themselves are not always neutral or independent of identity. Until 1943, he told the audience, the ABA did not allow Black people to become lawyers because they were deemed unprofessional.
Brown v. Board of Education, he said, casts a shadow that every lawyer has to deal with. “On the one hand, Brown promises equality through integration, which implies that if we just provide equal access and opportunity, that’s all we’re obligated to do in order to produce a just society.” But Brown also promises social justice through law, implying that lawyers should fight for equality and social change. Navigating the tension between these two visions is particularly an issue for Black lawyers or Black law students who are themselves literally the inheritors of both. They have their opportunities because people opened up opportunity and access. But they also are the products of a vision of social justice through law. And they are also acutely aware that the pursuit of the first doesn’t guarantee the second, Wilkins said.
Just because you change the demographics of the people who are in power doesn’t mean that the power changes, he added. But Black lawyers are also acutely aware that trying to pursue the second exerts a much greater challenge and risk to them than it does to others because their credibility is already questioned. But all of us face this challenge, he told the students. “All lawyers face the challenge of what is it that is required of us by the relationship between lawyering and justice in a world that we know is riven by injustice. And we also know that the rule of law is more important today than it ever has been.”
A long history of Black lawyering
Wilkins started his talk with George Lewis Ruffin LL.B. 1869, the first African American to graduate from Harvard Law School, four years after the Civil War, and the first Black person to receive a formal legal education in the United States.
In the years since Ruffin’s graduation, said Wilkins, Harvard Law School has become the second most important source of Black lawyers in the U.S., second only to Howard University School of Law. The histories of Harvard and Howard are in fact intertwined, said Wilkins, through another Harvard Law graduate, Charles Hamilton Houston LL.B. ’22 S.J.D. ’23. “Arguably no Black graduate has had more of an impact not just on the Black legal profession but on American law and constitutional democracy.”
Houston was the first Black editor on the Harvard Law Review, “a superstar student.” After graduation, said Wilkins, he did what almost all Black lawyers of his generation did, working in solo practice. But he eventually became the vice dean of Howard Law School, and from there created the litigation campaign that eventually resulted in the landmark decision of Brown v. Board of Education.
“Brown wasn’t just iconic for the rights of Black Americans,” said Wilkins. “Brown basically rescued the promise of American democracy chiseled on the Supreme Court of the United States — ‘Equal Justice Under Law’ — from the hypocrisy of Jim Crow and slavery and all of the other issues that had denied the legitimacy of the claims made in the Declaration of Independence and the Constitution.”
“But although Brown signaled the end of de jure segregation,” Wilkins said, “first in the public schools and then, in a series of decisions, in other areas of American life, it did not end de facto segregation, including in the legal profession or legal education.”
Putting this in a Harvard context, Wilkins said the class of 1965 had the same number of Black lawyers as the class of 1865: one. Conrad Harper ’65 went on to become the first Black president of the New York City Bar Association and the first Black partner in a major law firm — to name just a few of his accomplishments.
Around that time, Harvard Law instituted a program, “you could call it an affirmative action program,” said Wilkins, “or you could just call it the first program to try to desegregate legal education in the history of the United States.” It brought together over the summer a group of talented Black seniors and juniors from historically Black colleges and universities to recruit and prepare them to apply and attend law school.
Although it was created by Dean Erwin Griswold LL.B. ’28 S.J.D. ’29 with the stipulation that it would not be a feeder program for Harvard Law, said Wilkins, several faculty members were so impressed with two of the students they convinced the dean to admit them. They were Reginald Lewis ’68, who became the first Black billionaire in the country (after whom a major campus building is named) and James McPherson ‘68, who left law for writing, winning a Pulitzer Prize and a MacArthur ‘genius’ grant.
To learn more about these issues, see the Center on the Legal Profession’s reports: “Harvard Law School: Report on the State of Black Alumni: 1869-2000” and “Harvard Law School: Report on the State of Alumni II: 2000-2016.”