Justice We Can Believe In Requires Racial Justice

July 9, 2020

Justified outrage over the killings of George Floyd and other Black Americans is prompting overdue efforts to address police brutality and other law enforcement practices impacting communities of color. But the legacy of racism that blights our criminal justice system also creates inequities in our society more broadly, and the nationwide protests have served as clarion calls for reassessing how both we as individuals and our institutions can better promote civil rights, equity, and inclusion.

IAALS joins others in this process of listening, reflecting, and recommitting ourselves to these goals because they are central to our vision of a justice system that works for all people by being accessible, fair, reliable, efficient, and accountable. Since our founding, IAALS has been committed to restoring fairness and the public’s faith in our legal system. Those goals cannot be achieved unless we expressly recognize how our system disparately impacts racial minorities and the poor, and how historical injustices such as slavery and legally supported discrimination have created continued inequality and structural racism. But it is not enough to celebrate an ideal of equal justice and to recognize how far we need to go—IAALS is also committed to identifying concrete steps forward.

We start by seeking in our own work environment to support diversity and inclusiveness, and we also seek to do so externally in our partnering with others, including through our various advisory boards, convenings, and events. We need to advance further, and we invite suggestions, engagement and participation from others. Our project-specific work also has implications for racial justice in many dimensions, although we can and should expand our efforts.

Our US Justice Needs survey will illuminate how people across our country face different legal issues and address them. Pathbreaking in its scope, it will yield important insights into how different demographic groups do or do not have effective access to justice, including disparities across racial and ethnic groups. That information will help guide further reform efforts.

We already know that our civil justice system faces a crisis in terms of access. Most poor people—and Black Americans and many other minority groups disproportionately are among those facing financial hardship—receive no or inadequate legal assistance on issues affecting such basic concerns as health, housing, and employment. Efforts to improve court processes, such as reforming debt collection—one of our projects in partnership with the National Center for State Courts—or better serving self-represented litigants, will help advance equity and fairness, particularly for the disadvantaged.

Our judicial system depends ultimately on the public’s trust and confidence, as illuminated by our recently released qualitative study, Public Perspectives on Trust and Confidence in the Courts. We found that many people perceive racial and gender bias within the court system; other studies show that Blacks have significantly less confidence than others in our justice system generally and that Blacks and Hispanics are more likely to think that too many judges in state courts do not understand problems facing people in their communities. As we noted in our report, “courts must proactively address both the perception and the reality of racial biases if the public is to view our system as reflecting the rule of law.”

Across the nation, many state chief justices and their colleagues have spoken out about the need for court systems to recognize racial injustice and how their practices may themselves perpetuate it. Illustrative is the statement by the Massachusetts Supreme Judicial Court: “As judges, we must look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms; to ensure that the justice provided to African-Americans is the same that is provided to white Americans; to create in our courtrooms, our corner of the world, a place where all are truly equal.” IAALS has long worked with state supreme courts to improve processes in civil and family court cases. Building on those relationships, we should similarly support—through convenings, pilot projects, and research—efforts to recognize and combat racial injustice in our courts.

The public’s confidence—or its absence—concerns a judicial system that does not reflect the growing diversity of our nation. For example, there is a striking lack of diversity on state supreme courts—the courts overseeing the state judicial systems, which comprise 95 percent of cases filed yearly in the United States. As of last year, twenty-four state supreme courts had an all-white bench, and persons of color held only 15 percent of state supreme court seats nationwide, although they are nearly forty percent of our nation’s population. The limited diversity of judges echoes that of the legal profession. The portion of lawyers nationwide who identify as Black (4.9%), Hispanic (4.7%), or Native American (less than 1%) remained almost flat over the decade 2009–2018. This has occurred even though law schools have made gains in attracting a more diverse student population.

IAALS’ work is helping to address the lack of diversity at the entry point to the profession. Becoming a lawyer generally requires passing the bar exam, and minority students face, for many reasons, greater hurdles in doing so. Our Building a Better Bar study seeks to identify, based on the input of lawyers themselves (including lawyers of color and women), the minimum competencies actually required to succeed in practice. The results will help inform efforts to make the bar admission process fairer and more accessible. Based on our previous Foundations for Practice research, legal employers can identify objective qualities for hiring prospective candidates, and we have worked with law firms like Wheeler Trigg O’Donnell in Denver and presented at the Center for Legal Inclusiveness Summit to help others use these tools to promote diversity and inclusion. We plan to expand these efforts, including through our Law Firm Council under the leadership of Katie Reilly, a partner at Wheeler Trigg.

We have also long worked to promote improvements in the selection and retention of judges, through such projects as the O'Connor Judicial Selection Plan and our recommendations for the Judicial Performance Evaluation (JPE) process used in many states. It is time, however, that we reevaluate these efforts and consider new ones. For example, could our approach to our Foundations for Practice research be usefully applied in the recruitment, selection, and retention of judges? Are there new ways IAALS can partner with others in promoting greater diversity on the bench? Can we help identify ways to design processes for judicial evaluation that assess a judge’s fairness in different dimensions, including both explicit and implicit bias?

Our work on reforming the regulation of legal services—Unlocking Legal Regulation—also serves to promote racial justice, as explained recently by my colleagues Zack DeMeola and Natalie Knowlton. Existing rules that allow only lawyers to provide most legal services effectively deny access to legal help to those most vulnerable, again disproportionately the poor and minorities. As Rohan Pavuluri pointedly observed, denying access is a civil rights issue: “It's not hard to see why Black Americans rightfully feel like they live under a different legal system when they must overwhelmingly rely on white lawyers who they can't afford to access their basic civil legal rights.” Recognizing this fact, IAALS is leading the call for court leaders, lawyers, and the public to support reforms that will allow innovation and greater access in the provision of legal services.

The struggle for racial justice, as many have noted, is a movement, not a moment. This is just as true for our legal system as in society more broadly. IAALS will join others in working towards that goal—through projects like those described and others we are working to identify—recognizing that the steps are many and the journey long. But no other path can bring us toward justice we can believe in.